children's magical garden - summons and complaint

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X

Index No. _______________ Date Purchased:

Plaintiff designates New York County as the place of trial. The basis of venue is

C.P.L.R. 503, 507, 509.

SUMMONS

CHILDRENS MAGICAL GARDEN, INC.,

Plaintiff,

- against -

NORFOLK STREET DEVELOPMENT, LLC, S&H EQUITIES (NY), INC., SERGE HOYDA, and 157, LLC,

Defendants.

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TO THE ABOVE NAMED DEFENDANTS:

YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve

a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of

appearance, on the Plaintiffs attorney within 20 days after service of this summons, exclusive of

the day of service (or within 30 days after service is complete if this summons is not personally

delivered to you within the State of New York); and in case of your failure to appear or answer,

judgment will be taken against you by default for the relief demanded in the complaint.

Dated: New York, New York Respectfully submitted, March 10, 2014

SIDLEY AUSTIN LLP

By: /s/ Benjamin F. Burry yNicholas P. Crowell Benjamin F. Burry Lauren E. Treadaway 787 Seventh Avenue New York, New York 10019 (212) 839-5300 (212) 839-5599 (fax)

Attorneys for Plaintiff Childrens Magical Garden, Inc.

FILED: NEW YORK COUNTY CLERK 03/10/2014 INDEX NO. 152094/2014NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/10/2014

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Defendants Addresses:

Norfolk Street Development, LLC c/o S&H Equities (NY), Inc. 98 Cutter Mill Rd. Great Neck, New York 11021

S&H Equities (NY), Inc. 777 Old Country Rd. Ste. 204 Plainview, New York 11803

Serge Hoyda 98 Cutter Mill Road Ste. 390 Great Neck, New York 11021

157, LLC c/o David Marom 55 Broadway Brooklyn, New York 11249

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X

Index No. _______________

COMPLAINT

CHILDRENS MAGICAL GARDEN, INC.,

Plaintiff,

- against -

NORFOLK STREET DEVELOPMENT, LLC, S&H EQUITIES (NY), INC., SERGE HOYDA, and 157, LLC,

Defendants.

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Plaintiff Childrens Magical Garden, Inc. (Childrens Magical Garden, the Garden,

or Plaintiff), by its undersigned attorneys, for its Complaint against Defendants Norfolk Street

Development, LLC (Norfolk), S&H Equities (NY), Inc. (S&H Equities), Serge Hoyda

(Hoyda), and 157, LLC, (collectively Defendants), alleges as follows:

NATURE OF THE ACTION

1. Thirty years ago the Childrens Magical Garden was founded by

community activists in response to the crime that was plaguing the Lower East Side. Outraged

by the piles of garbage, used needles, and other discarded waste piled up on an abandoned corner

lot across the street from P.S. 20 elementary school, these residents decided to take action.

2. On that vacant corner lot, now known as 157 Norfolk Street, Block 154,

Lots 16, 18, and 19 (collectively the Premises), the Gardens Members (Members) cleared

the debris and turned hazardous urban blight into an enclosed garden sanctuary where Members

host programs for neighborhood children to safely play and learn about nature.

3. Members tightly controlled access to the garden. The Premises was totally

enclosed by a metal chain link fence, only accessible by Members with a key. Members are

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present whenever the Premises is in use, and, upon leaving the Premises, lock the gate behind

them.

4. Over the years, Members have improved the Premises by cultivating fruit,

evergreen trees, vegetable gardens, and rose bushes, and by building walkways, a fish pond, and

other structures. The Gardens Members have vigorously asserted their claim of right over Lot

19, including against Defendants, who, for decades, have attempted to interfere with Plaintiffs

lengthy, uninterrupted possession of the Premises.

5. The Premises, founded as an urban oasis for schoolchildren growing up in

a dangerous neighborhood, has steadily grown, through Plaintiffs cultivation and improvement,

into a cultural force that has given mentorship to thousands and inspired a connection to nature

for generations of New York City residents.

6. In May 2013, long after New Yorks ten-year period for adverse

possession had been satisfied, Defendants forced their way onto the Premises, where they

trampled, destroyed, and damaged Plaintiffs cultivation and improvements and erected an

interior fence surrounding Lot 19 which Defendants protected with an improperly obtained

permit and by dispatching a full-time staff of private security guards.

7. Recognizing the importance that the Childrens Magical Garden has to its

community and New York City as a whole, New York City Council Speaker Christine Quinn

and District Councilmember Margaret Chin wrote an impassioned letter to Defendants Hoyda

and Norfolk, requesting that Defendants remove the offending fence. In the summer of 2013,

Plaintiff, with the help of Councilmember Margaret Chin and others, secured the Citys

agreement to transfer two of the three lots that make up the GardenLots 16 and 18to the

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New York City Department of Parks and Recreation for preservation under the Citys

GreenThumb program, thus ensuring Plaintiffs continued operation.

8. Unfortunately, Defendants have ignored the pleas by the City Council,

community groups, local businesses and residents, and have declined to work with Plaintiff to

find a way to similarly protect Lot 19, an important piece of New York City culture and history.

9. Decades ago, Defendants and their predecessors abandoned Lot 19 as a

shameful eyesore and a danger to schoolchildren. Plaintiff and its Members took possession and

by their tremendous efforts transformed the Premises into a vibrant community garden where

generations of children have thrived. During that time, Defendants never brought an action for

ejectment or protected whatever claim they may have once had to Lot 19. After Plaintiffs claim

and uninterrupted possession for thirty years, Defendants cannot now reemerge to seize this land

for themselves. Lot 19 belongs to the Childrens Magical Garden.

10. Accordingly, Plaintiff brings this action for declaratory judgment that it

has adversely possessed Lot 19, for injunctive relief, and for nuisance, trespass, ejectment, and

violation of N.Y. Real Property Actions and Proceedings Law (RPAPL) 861.

THE PARTIES

11. Plaintiff Childrens Magical Garden, Inc. is a not-for-profit corporation,

duly organized and existing under the laws of the State of Delaware, having its principal place of

business at 157 Norfolk Street, New York, New York.

12. On information and belief, Defendant Norfolk Street Development, LLC

is a New York limited liability company with its principal place of business located in Nassau

County, New York.

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13. On information and belief, Defendant S&H Equities (NY), Inc. is a New

York corporation with its principal place of business located at 98 Cutter Mill Road, Great Neck,

New York 11021.

14. On information and belief, Defendant Serge Hoyda is an individual who is

the Chief Executor Officer and principal of S&H Equities and resides in the State of New York.

15. On information and belief, Defendant 157, LLC is a New York limited

liability company with its principal place of business located in Kings County, New York.

JURISDICTION AND VENUE

16. This Court has jurisdiction over this action pursuant to CPLR 301, et seq.

because Plaintiff has its principal place of business in the State of New York and, on information

and belief, Defendants either reside in or have their principal place of business in the State of

New York.

17. Venue is proper in this Court pursuant to CPLR 503(a) and (c) and CPLR

507 because Plaintiff has its principal place of business in the County of New York and the

judgment demanded will affect the title to, or the possession, use or enjoyment of, real property

located in the County of New York.

FACTUAL BACKGROUND

Garden Members Take Possession of the Premises

18. The Childrens Magical Garden was founded no later than 1985 by

community activists at the corner lot on Stanton and Norfolk Streets, also known as 157 Norfolk

Street, New York, New York, Block 154, Lots 16, 18, and 19.

19. At that time, crime plagued the neighborhood. Used needles, old tires,

discarded metal, and piles of garbage littered the Premises, emanating an unbelievable stench.

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Outraged that such abject conditions could exist across the street from an elementary school, P.S.

20, Members set to work, building and cultivating what has today become a neighborhood icon.

20. Members began by clearing the debris and vermin from the otherwise

vacant Premises. They pulled up weeds that had overgrown the Premises. A chain-link fence

was built to enclose the Premises.

21. Members procured supplies including concrete, soil, fertilizer, manure,

trees, plants, and gardening tools. Some of these supplies were purchased by Garden Members.

Others were obtained by donations.

22. Garden Members planted a variety of trees and plants. These included

strawberries, eggplant, and cucumber. Members also purchased flowers, including pansies,

azaleas, and bleeding heart plants, and planted them in the garden. They planted an apple tree

and dogwood tree. One Member planted a pine tree and, with his now-wife, planted three large

rose bushes, which they named Ulysses, Penelope, and Menelaus. To complement seasonal

plants, Members planted evergreen trees to further their enjoyment of the Premises in winter

months.

23. In addition to the plantings, Members built structures on the Premises.

They built a seesaw and added playground equipment. Members built a wooden stage on the

Premises that was used for concerts and to display pieces of art. Local children frequently used

the stage to play and put on performances. Several years after taking possession of the Premises,

Members used concrete fill to build a pond on the Premises that was sustainable for fish.

24. Initially there was only one entrance to the enclosed Premises. The only

access to the Premises was though a gate built into the perimeter fence, on the side of the

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Premises abutting Norfolk Street (on Lot 19). Later an auxiliary gate was built into the perimeter

fence, on the side of the Premises abutting Stanton Street (on Lot 16).

25. The Premises has never been open to the general public. Members keep

the gates locked, and the Premises can only be accessed by first unlocking the gate with a special

key secured by Members. After unlocking the gate, a Member remains to supervise as long as

the Premises is in use. Upon leaving the Premises, that Member, first assuring that no one

remains on the Premises, then locks the gates. The Gardens Members keep these gates locked at

night and any other time it is not in use under supervision of a Member.

Members Continue to Cultivate And Maintain The Premises As A Community Garden

26. The Gardens Members have used the Premises for mentorship to local

children, with a particular emphasis on nature-based experiential learning for children aged 2-18

years old.

27. Members have hosted students from the School for Global Leaders, Lower

East Side Prep, and Marta Valle High School for science, math, culinary arts, and community

service activities on the Premises. The Garden uses its Premises to host afterschool and summer

camp programs that give children hands-on vegetable growing experiences, including for Grand

Street Settlement, the Cub Scouts, and the Head Start program.

28. Until Defendants placed their illegal obstruction in 2013, each year the

Gardens Members hosted local youth for the planting of a pizza garden on the Premises that

included tomatoes, peppers, eggplant, basil, thyme, oregano. In the fall, Members held a pizza-

making party on the Premises where children enjoyed the harvest of vegetables.

29. The Gardens Members hold poetry readings and music events during the

summer, put on a concert at the Premises each September as a participant in the Vision Festival

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Jazz In Gardens Series, and open the Premises for a Winter Solstice celebration each December

21st with art and live music.

30. Generations of children have enjoyed and thrived at the Gardens

Premises, as maintained and cultivated by its Members. Some of those children, now adults, are

Members who mentor and teach the current generation of children at the Premises.

31. The Garden has continued to cultivate and add new plants to the Premises,

which today include peach, apple, nectarine, cherry, pear, mulberry, and plum trees, and

numerous bushes and flower gardens. Fruits grown on the Premises are harvested and enjoyed

during special fruit picking days hosted by Garden Members. By the continuous and diligent

work of Members, the Garden has maintained and steadily grown both its biodiversity and

annual yield of fruits and vegetables cultivated on the Premises.

Members Exclude Defendants Hoyda and S&H Equities From the Premises

32. The Gardens Members have vigorously protected the Gardens claim of

right against third parties, including Defendants.

33. On information and belief, in August 1999, Defendants Hoyda, Norfolk,

and S&H Equities or their agents cut through the Gardens exterior fence and entered the

Premises. The intruders, acting at the behest of Defendants, chopped down an evergreen tree

beloved by local children as a Christmas tree during winter holidays that Members had planted

more than a decade earlier. During their agitation, Defendants also attacked and damaged a

childrens clubhouse that Members had built and maintained on the Premises. Further,

Defendants attempted to build a makeshift interior fence inside the Premises.

34. Members immediately tore down Defendants fence and removed it from

the Premises. After forthrightly excluding any trace of Defendants from the Premises, Members

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went about repairing the damage inflicted, replanting uprooted or destroyed plant life, and

adhered to their steadfast claim to the Premises, thus continuing clear and exclusive possession

of the Premises.

In May 2013 Defendants Obstruct and Damage the Premises

35. On May 14, 2013, the Garden hosted a class of ESL students from Lower

East Side Prep at the Premises who had recently arrived in the United States and were learning

English. The class planted seedlings on the Premises, and posted small signs that designated the

English, Chinese, and Spanish names for each crop.

36. On information and belief, shortly before 9 A.M. on May 15, 2013, a

group of men with power tools and construction equipment accompanied by private security

guards came upon the Premises, and signaled their intention to breach the exterior fence. A

crowd gathered, including Garden Members, and protested that the construction crew had no

right to enter the Premises; some stood in front of the main gate in an attempt to prevent the men

from forcing their way on to the Premises. The standoff ended when officers from the New York

City Police Department ordered the group of men to be given access to the Premises. On

information and belief, the trespassers were Defendants or their agents and among them was an

attorney purporting to represent Defendant Hoyda.

37. Defendants and their agents trampled, destroyed, and dug up plants,

shrubs, trees and otherwise damaged or destroyed portions of Plaintiffs cultivation and

improvements to the Premises. Defendants and their agents, without legal right, destroyed the

garden planted one day earlier by the Lower East Side Prep students.

38. Defendants and their agents then proceeded to erect a metal fence inside

the Premises, purporting to barricade Lot 19 from the remainder of the Premises.

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39. To prevent Plaintiff from asserting its rightful possession of the Premises

and removing Defendants fenceas Plaintiff had done on past occasionsDefendants

employed a private security firm to station guards to conduct around-the-clock surveillance of

the Premises.

40. Defendants violent trespass onto the Premises caused an uproar in the

community. On May 28, 2013, Christine Quinn, Speaker of the New York City Council and

District 1 Councilmember Margaret Chin sent a letter to Defendants Hoyda and Norfolk,

requesting Defendants remove the Fence.

41. To date, Defendants have refused all attempts by Plaintiff, public officials,

and community groups to reach a peaceful solution and have not compensated Plaintiff for the

damages arising from their illegal entry.

42. Today Defendants fence still cuts across the Premises, rendering certain

cultivation, including herb and vegetable beds, as well as Plaintiffs nectarine and fig trees and

meditation area, inaccessible, and thereby causing further injury to Plaintiff.

Lots 16 and 18 Are Transferred to Green Thumb

43. In July 2013, Plaintiff was able to secure preservation for two of the three

lots that make up the GardenLots 16 and 18under the Citys GreenThumb program. With

support letters sent by the principals of all four adjacent schools, P.S. 20, Marta Valle High

School, School for Global Leaders, and Lower East Side Prep High School; a petition signed by

2,500 community members; and the generous efforts of District Councilmember Margaret Chin

and many others, on June 26, 2013, New York City Manhattan Community Board 3 passed a

resolution declaring that it very strongly favors a proposal to the extent possible to preserve the

whole community garden. As a result of the resolution, on July 3, 2013, Plaintiff finally

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secured an agreement for the transfer of Lots 16 and 18 to the New York City Department of

Parks and Recreation for preservation under the Citys GreenThumb program, thus ensuring

Plaintiffs continued operation.

Defendants Attempt to Develop and Transfer Lot 19

44. On information and belief, on November 22, 2013, Defendants caused an

application to be filed with the New York Department of Buildings for the construction of a six-

story, 70-foot-tall residential building on Lot 19an interior parcel of what, for decades, has

been the property of the Childrens Magical Garden.

45. On information and belief, on January 9, 2014, Defendant Norfolk

purported to transfer Lot 19 to Defendant 157, LLC for the sum of $3,350,000 as well as other

consideration and side-agreements.

FIRST CAUSE OF ACTION(DECLARATORY JUDGMENT)

46. The Childrens Magical Garden repeats and realleges paragraphs 1

through 45 of this Complaint as if fully set forth herein.

47. The Premises was surrounded by an enclosure, namely, a fence, and has

been cultivated and improved by a community garden and accompanying structures, and access

to Lot 19 was only possible by a locked gate controlled by Plaintiff.

48. Plaintiff has possessed Lot 19 continuously under claim of right for a

period of time not fewer than ten consecutive years. The character of the possession of Lot 19

by Plaintiff was hostile in nature, actual, open and obvious, exclusive, and continuous for a

period of time not fewer than ten consecutive years.

49. Plaintiff, by reason of the foregoing, has adversely possessed title to Lot

19.

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50. Defendants have wrongfully constructed a fence obstructing Plaintiffs

access to Lot 19.

51. Plaintiff, New York City public officials, various neighborhood groups,

and others have repeatedly demanded that Defendants remove the offending fence and not

interfere with Plaintiffs exclusive and unrestricted access to Lot 19. Defendants have failed and

refused to honor these demands and have continued to actively pursue permits from the New

York City Department of Buildings to build on Lot 19.

52. In view of the foregoing, it is desirable and necessary that a judicial

determination be made establishing the identity of the party that has the legal and equitable title

to Lot 19, free and clear of all claims by any other party.

53. Plaintiff has no other remedy.

54. By reason of the forgoing, Plaintiff is entitled to a declaratory judgment

declaring the rights of the Plaintiff with respect to the matters set forth in this Complaint, and, in

particular, declaring and specifying: (a) that Plaintiff is the sole and exclusive legal and

equitable owner of Lot 19; (b) that Plaintiff is entitled to sole, exclusive and unfettered use of

and access to Lot 19; and (c) that Defendants have no legal or equitable claim to the ownership

or use of Lot 19, whether by claim of legal title, adverse possession, prescriptive easement, or

under or pursuant to any other legal or equitable principle.

SECOND CAUSE OF ACTION(INJUNCTION)



56. Plaintiff has demonstrated the likelihood of success on the merits of its

claim that it is the sole and exclusive legal and equitable owner of Lot 19 and that Defendants

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have, and continue to, trespass on and substantially interfere with Plaintiffs use and enjoyment

of Lot 19.

57. Plaintiff will suffer irreparable injury if the injunction sought is not

granted. As fee simple owner to Lot 19, Plaintiff has the right to the possession of Lot 19, and if

the injunction is not granted, Defendants continued trespass and interference will impair

Plaintiffs property rights and continued operation of a community garden on the Premises.

58. Plaintiff has no other adequate remedy for the harm by Defendants

obstruction of Plaintiffs access to a vital part of its community garden.

59. A balancing of the equities favors restoring possession of Lot 19 to

Plaintiff as rightful owner.

60. By reason of the foregoing, Plaintiff is entitled to injunctive relief.

THIRD CAUSE OF ACTION(PRIVATE NUISANCE)



62. The fence around Lot 19, by its nature, substantially interferes with

Plaintiffs use by preventing Plaintiff from accessing Lot 19, from tending to certain plants, and

from making any use and enjoyment of the land.

63. Defendants intentionally and deliberately sent work crews to install the

interfering fence and dispatched private security contractors to stand guard.

64. The obstructing fence is unreasonable in character, as its sole purpose is to

keep Plaintiff and its guests from accessing Plaintiffs property.

65. The obstructing fence is a direct result of Defendants conduct.

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66. By reason of the foregoing, Plaintiff has suffered and continues to suffer

damages and is entitled to injunctive relief.

FOURTH CAUSE OF ACTION(TRESPASS)



68. Defendants intentionally placed an obstructing fence on Plaintiffs

Premises.

69. In erecting the fence, Defendants destroyed a portion of Plaintiffs

enclosure, trampling and damaging plantings and other improvements on Plaintiffs property.

The presence of Defendants obstruction has prevented Plaintiff from caring for plants and

maintaining various improvements and cultivation, thereby causing further damage to the

Garden. Plaintiff has been further damaged by Defendants trespass because it has been unable

to use the portion of the Premises obstructed by the fence.

70. Defendants have ignored demands by Plaintiff, New York City public

officials, various neighborhood groups, and others to remove the offending fence and not

interfere with Plaintiffs exclusive and unrestricted access to Lot 19.

71. Defendants have failed and refused to honor these demands.

72. As a result of the foregoing, Plaintiff is entitled to the immediate and

exclusive use, possession and control of the entirety of the Premises.



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FIFTH CAUSE OF ACTION(EJECTMENT)



75. At all the times mentioned herein, Plaintiff was and still is the owner of

Lot 19.

76. On or about May 15, 2013, and on many occasions thereafter, the

Defendants, wrongfully and without legal right, entered into and upon the property of the

Plaintiff described above, tore down and destroyed Plaintiffs cultivation and improvements, and

intentionally placed the obstructions on the Premises, wrongfully depriving Plaintiff of

possession of and access to Lot 19.

77. The Defendants continue to so trespass upon Plaintiffs property and to

deprive Plaintiff of the use of the Premises and to bar Plaintiff therefrom.



SIXTH CAUSE OF ACTION(RPAPL 861)



80. By forcibly entering Plaintiffs property and erecting the fence around Lot

19, without Plaintiffs consent, Defendants have intentionally or recklessly injured, damaged,

destroyed, and removed tree and timber from the land.

81. As a result of such violation, Defendants have caused permanent and

substantial damage to the land or the improvements thereon.

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82. In erecting the fence, Defendants trampled and damaged plantings on the

Gardens property. The presence of the fence has prevented Plaintiff from caring for and

maintaining certain trees and plants within the perimeter of the fence, thereby causing further

damage to the Garden.

83. On information and belief, Defendants had no cause to believe that they

had a legal right entitling them to take such action.

84. By reason of the foregoing Plaintiff has suffered damages and is entitled to

treble damages under RPAPL 861.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for relief and judgment, as follows:

(a) That the Defendants be enjoined and restrained during the pendency of this action

from interfering with Plaintiffs possession of the Premises;

(b) For declaratory judgment declaring the rights of the Garden with respect to the

matters set forth in this Complaint, and, in particular, declaring and specifying:

(a) that Plaintiff is the sole and exclusive legal and equitable owner of Lot 19; (b)

that Plaintiff is entitled to sole, exclusive, and unfettered use of and access to Lot

19; and (c) that Defendants have no legal or equitable claim to the ownership or

use of Lot 19, whether by claim of legal title, adverse possession, prescriptive

easement, or under or pursuant to any other legal or equitable principle;

(c) For an order permanently enjoining Defendants, their agents, employees,

contractors, servants, and any other persons in active concert with Defendants,

from entering, intruding, or otherwise trespassing upon Lot 19 and ordering

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Defendants to remove their fence and all obstructions they have placed on the

Premises;

(d) Awarding actual damages resulting from Defendants private nuisance, trespass,

ejectment, and violation of RPAPL 861;

(e) Awarding treble damages resulting from Defendants violation of RPAPL 861;

(f) Awarding punitive damages;

(g) Awarding reasonable out-of-pocket expenses, including legal fees, and costs of

collection that Plaintiff has incurred in this action;

(h) Awarding pre- and post- judgment interest at the maximum lawful rate; and

(i) Granting such other and further relief as the Court may deem just and proper.

JURY TRIAL DEMAND

Plaintiff demands trial by jury of all issues triable of right to a jury.

Dated: New York, New York Respectfully submitted, March 10, 2014

SIDLEY AUSTIN LLP

By: /s/ Benjamin F. Burry yNicholas P. Crowell Benjamin F. Burry Lauren E. Treadaway 787 Seventh Avenue New York, New York 10019 (212) 839-5300 (212) 839-5599 (fax)

Attorneys for Plaintiff Childrens Magical Garden, Inc.

children's magical garden - summons and complaint

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