mun. resp. exh d - (# legal 3126902)

8/3/2019 Mun. Resp. Exh D - (# Legal 3126902)

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SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY - CIVIL TERM - PART 11----------------------------------------------XIn the matter of the Application of CHELSEABUSINESS & PROPERTY OWNERS' ASSOCIATION, LLC,d/b/a CHELSEA FLATIRON COALITION,

Petitioner,

For an Order pursuant to Article 78 of the CivilPractice Law and Rules

-against-

THE CITY OF NEW YORK; SETH DIAMOND,Commissioner for the Department of HomelessServices of the City of New York ("DHS");GEORGE NASHAK, Deputy Commissioner for AdultServices for DHS; ROBERT D. LIMANDRI,Commissioner for the Department of Buildingsof the City of New York ("DOB"); FATMA P.COLGATE, R.A., Assistant Commissioner for DOB;JAMES P. COLGATE, R.A., Assistant Commissionerto Technical Affairs and Code Development for DOB;VITO MUSTACIUOLO, Deputy Commissioner for theDepartment of Housing, Preservation & Development

of the City of New York, BOWERY RESIDENTS' COMMITTEE,INC.; 127 WEST 25TH LLC; and DANIEL SHAVOLIAN,

Respondents.

----------------------------------------------XIndex No. 113194/10 60 Centre StreetTELEPHONIC MOTION New York, New York

August 1, 2011

B E F O R E: HONORABLE JOAN A. MADDEN, Justice

A P P E A R A N C E S:

BRACEWELL & GIULIANI, LLPAttorneys for the Petitioner1251 Avenue of the AmericasNew York, New York 10020-1104212-508-6104BY: DANIEL S. CONNOLLY, ESQ.

RACHEL B. GOLDMAN, ESQ.



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A P P E A R A N C E S: (Continued)

NEW YORK CITY LAW DEPARTMENT

OFFICE OF CORPORATION COUNSELAttorneys for the Municipal Respondents100 Church StreetNew York, New York212-788-1145BY: CHRISTOPHER KING, ESQ.

SHERYL NEUFELD, ESQ.HALEY STEIN, ESQ.

GIBSON DUNNAttorneys for Respondent Bowery Residents Committee200 Park Avenue

New York, New York212-351-4000BY: RANDY M. MASTRO, ESQ.

GEORGIA WINSTON, ESQ.

NEW YORK CITY COUNCILBY: JEFFREY METZLER, ESQ.

LAUREN AXELROD, ESQ.

NEW YORK CITY DEPARTMENT OF HOMELESS SERVICESBY: MICHELE OVESEY, ESQ.

CLAUDE CASTRO & ASSOCIATES, PLLCAttorneys for Respondents 127 West 25th, LLC and DanielShavolian355 Lexington AvenueNew York, New York 10017BY: PAUL MARTIN, ESQ.

MICHAEL J. DAUGENTI, CSR, RPR, RMR, CRROFFICIAL COURT REPORTER



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THE COURT: I have a court reporter here. I'd

like you to identify who is on the line. I'm going to

put you on speaker phone.

MR. CONNOLLY: Daniel Connolly for Bracewell &

Giuliani on behalf of Petitioner Chelsea Business and

Property Owners and I'm joined by Rachel Goldman of

Bracewell and Giuliani as well.

MR. METZLER: Jeffrey Metzler, New York City

Council. I'm the associate counsel on behalf of the

applicant, the New York City Council, along with Lauren

Axelrod.

THE COURT: Is there anyone else there?

MR. MASTRO: Randy Mastro and Georgia Winston

for respondent BRC.

MR. KING: Chris King, your Honor, from the New

York City Corporation Counsel's Office for municipal

respondents, and also from the Corporation counsel's

Office is Haley Stein and Sheryl Neufeld. We also have

sitting in the general counsel of the Homeless Services,

Michelle Ovesey.

MR. MARTIN: Also my name is Paul Martin from

Claude Castro & Associates, for 127 West 25th, LLC, and

Daniel Shavolian.

MR. CONNOLLY: I think that's everyone, your

Honor.



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THE COURT: You all received the courtesy copy

of the motion made by Mr. Metzler on behalf of the City

Counsel?

MR. CONNOLLY: Yes, your Honor.

MR. MASTRO: Yes, your Honor.

MR. KING: Yes, your Honor.

MR. MARTIN: Yes, your Honor.

THE COURT: Will the municipal defendants -- Mr.

King, what is the position of the municipal defendants?

MR. KING: Your Honor, we, in a nutshell, would

not object to the Council intervening on the issue of

preemption, which was raised in the City's answer. We

would, however, object to the Council intervening on the

issue of the City's interpretation or enforcement of the

ad code provision, which Mr. Metzler alludes to in his

affirmation, as being untimely. I think we agree with

BRC and Mr. Mastro, those issues are not timely before

the court because the Council has been aware of them for

at least eight, nine months, probably longer. And it's

too late at this time to raise those issues.

THE COURT: Mr. Metzler?

MR. METZLER: Yes, your Honor, while it is true

that we were aware of the preliminary injunction motion

and the arguments that were made in response to that, I

think we do have a very strong interest in insuring that



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the code is being properly enforced as well. I mean, to

be perfectly frank, an enforcement issue doesn't present

as strong of an interest for the Council because it only

is an individual case and when we were -- when we became

aware of the argument that were being made in the

preliminary injunction motion, we had to sort of weigh

that -- weigh the strength of that interest against the

downside of intervening and didn't think it was worth it.

At this point, though, given that the municipal

respondents have made the argument about preemption, we

feel that we have to intervene in order to -- for some

party to be defending the local law.

We do feel that we should have the opportunity

to also represent our interests with regard to the

application.

THE COURT: What specifically are you referring

to, Mr. Mezler?

MR. MEZLER: Well, specifically the argument --

THE COURT: Other than the preemption argument.

MR. MEZLER: The notion that the 200-bed limit

in the local law, that the local law could be interpreted

such that you could stack, you know, ten hundred bed

shelters or ten two hundred bed shelters on top of each

other and still comply with the local law. We believe

that is an incorrect interpretation, clearly an incorrect



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interpretation of the local law. And we also believe

with regard to the Camp LaGuardia exemption, that that

exemption was the intention of that -- including that

exemption was that when those large -- the Council

recognized that there were these large shelters and

recognized the need in the event that these large

shelters would be closed, that there would be a need to

house those individuals some place and so it included an

exemption in the local law.

But that's not the way in which the exemption is

being applied in this case where Camp LaGuardia closed I

think two or three years ago. And so we also believe

that that's an incorrect interpretation of the exemption

under the local law.

MR. KING: Mr. Metzler hasn't made any mention

of the Camp LaGuardia exemption in his application.

MR. MEZLER: Your Honor, we do talk about the

application of the local laws of this case.

MR. KING: Mr. Metzler, I think your application

is limited to -- the argument is as to whether or not

multiple contracts can be -- can be construed as separate

shelters. You don't make any mention whatsoever of the

Camp LaGuardia.

THE COURT: Could you just point to me the

section in the motion where he refers, Mr. Metzler refers



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to that issue?

MR. METZLER: I don't know that we made

reference to each of these individual arguments. I

specifically identified the Camp LaGuardia exemption as

an argument.

THE COURT: As to the other issues, stacking and

the different programs.

MR. KING: If I made refer the court to Mr.

Metzler's affirmation on Paragraph 15 about the profound

interest in insuring local laws governing the size of

homeless shelters are faithfully executed. That

basically says a ruling by this court on the preemption

issue, and I quote: Whether DHS can invade the two

hundred limit merely by signing multiple contracts for

the operation of a shelter for adults.

There's no mention whatsoever of the Camp

LaGuardia exception in his papers.

MR. METZLER: Your Honor, if I can be heard on

the notion that I would have to articulate on the merits

of each of the arguments that we were going to make in

the papers. I think the first part that Mr. King read is

correct and that's what the affirmation talks about, that

we will have found in insuring that the local law is

limiting the size of shelters to two hundred beds are

properly applied, at least that would quite obviously



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include any of the arguments including the Camp LaGuardia

exemption. That's not being properly applied here.

MR. KING: Again, your Honor, we submit that

counsel has had notice for almost a year of those

arguments and has chosen not to intervene over that time

frame. And under those circumstances their lateness

shouldn't be construed by the court.

THE COURT: Mr. King, counsel cites in his

papers that, in an Article 78 intervention can be as late

as a postjudgment motion for intervention. So I'm not

prepared at this point to rule on that particular issue.

But if you can agree that -- stipulate as to the

intervention of the City Council and reserve your rights

to oppose the issues that will be considered in

connection with that intervention, I think that would get

this particular motion moving and before me as soon as

possible.

MR. MASTRO: Your Honor, Mr. Mastro for

respondents BRC. If I understand what your Honor is

proposing that the parties stipulate the City Council can

intervene, reserve all rights to object to any issues

that City Council proposes to raise.

THE COURT: With the exception of the preemption

issue.

MR. MASTRO: With the exception of the



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preemption issue. The only thing that I would say about

that, your Honor, if your Honor is going to allow them to

do that, we are being severely prejudiced right now

because Speaker Quinn has been leaning all over us, and

the officials, to get the last approvals for certain

programs. We have all approvals necessary besides one,

an agency that she wrote to at least twice, and said she

would await the final ruling in this case.

So, if they're going to be allowed to do this,

Mr. --

THE COURT: Excuse me, I have another phone

call.

(There is a pause in the proceedings.)

THE COURT: Yes, Mr. Mastro.

MR. MASTRO: Your Honor, just a suggestion. We

functionally, effectively have not been able to move in

every program now because of what the speaker has done.

And we would say, your Honor, that your Honor is going to

propose to us that we agree to that approach, we are

reserving our rights to object to the various issues they

are raised besides preemption. They should get their

papers in this week and we should have a date early next

week by which we put in our response and whatever

objections that we have to it. It's fully before you as

soon as possible.



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I know your Honor promised all of us that with

all the burdens on your Honor, your Honor is going to

issue a decision very promptly, as quickly as you could.

I don't want to delay this one day because we don't think

the City Council has anything to add to that that hasn't

been raised by CFCRA.

Now, your Honor, they want you to think that we

don't have lengthy motion practice, that they're allowed

to intervene for the limited purpose of putting in the

preemption and then they can put anything else they want

to put in and we can object to it and put in our response

very quickly, and I would have to convince my client,

even though I think they're untimely, unnecessary, and

have no right to be here, but I shouldn't be prejudiced

by your Honor delaying one minute when they're just going

to parrot what CFC said before.

So I'm suggesting, you Honor, that if he wants

to put something in, he'll put it in this week and you

give him some dates later this week and he puts in

whatever he has to say, because he's saying things on

this call that he never said before. And it's not fair

to us, it's not right to us, and it's not right to the

City Council speaker who used her office to try and get

the state not to give us the approval not in the normal

course. We have every other approval and ready to move



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in. It would take millions to move in. When we were the

denied the injunction, the speaker wasn't happy with

that, she gets her parties to seek to intervene beyond

the eleventh hour.

If he wants to put something in on behalf of the

speaker and the City Council, let him do it this week.

MR. METZLER: Your Honor, if I could be heard on

that.

MR. MASTRO: Put your papers in.

THE COURT: Who's speaking?

MR. METZLER: This is Jeffrey Metzler. I know

Mr. Mastro is fond of drama. He knows I'm away on

vacation this week.

MR. MASTRO: That's not an excuse.

MR. METZLER: Okay, okay, he's prejudiced, Mr.

Mastro. And also the idea that BRC is the one that's

prejudiced and behind the eight ball here when the

Council receives notice of the argument -- by the way,

not from any of the parties -- that the local law was

being challenged in this case and the preemption argument

is being made, less than two weeks ago. The suggestion

that we sat on our laurels when we moved as absolutely

quickly as could have been possible, the earliest

possible stated meeting was on Thursday, we served the

papers Thursday night by overnight mail. The idea that



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we, the Council, have been sitting around and now all of

a sudden we have to try and rush about when we could have

received notice of this preemption argument at any point,

as soon as it was decided it was going to be made. You

know, it's crazy. And I think Mr. Mastro, he does know

I'm away on vacation; I told all of the parties that.

And the idea we would now have to rush around and somehow

submit papers at the end of this week when we just

received notice two weeks ago of the argument. To say we

even received notice isn't accurate. We found out about

it by third parties --

THE COURT: That's only as to the preemption

issue?

MR. MASTRO: Correct, your Honor.

MR. METZLER: Yes, that is correct. And as I

said we were aware of the other issue but after we had

done some preliminary looking into them and determined,

though, is the same old -- there is a single issue. It's

not appropriate for, on a single issue and a single

matter of application, and it wasn't worth the efforts of

the Council, the city wide interest, to intervene.

That being said if we're going to be intervening

in this case, we do have concerns about the way the law

is being applied in this individual case. Admittedly, it

doesn't have the same city-wide implications because it



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could be applied that way in this case and then applied

differently in another case.

When we became aware of the issue a few months

ago, that was the determination that we made before

intervening at this point. I think it's clear we have an

interest in the issue and should be entitled to be heard

on it.

MR. MASTRO: Your Honor, your Honor, if I may.

He just said he's known about it all along, the guys know

about it all along. It wasn't important enough for them

to intervene. Now he wants to intervene on preemption,

but he's not prepared to put his papers in quickly.

As your Honor correctly pointed out that we have

a situation, a petition, that's been buried for a long

time that they known about for a long time, it is now

fully submitted, having been briefed on all of these

issues by another party.

Your Honor pointed out, they can intervene even

post documents. If they don't like how your Honor rules

on preemption or any other issue, they can seek to

intervene then. But I would think that your Honor

shouldn't delay for one minute going forward with

resolving the case and denying their motion without

prejudice to them renewing after they see how you rule.

Because in our case they can do that post-judgment.



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He's only really here about our preemption issue

and he's not prepared to brief it right away. And CFC,

while I think they're wrong, I read their briefing on the

issue, I don't think that Council has more to say on it

than CFC has to say.

So, I think, your Honor, the correct approach

for today is no, I'm not going to slow down the train,

like the speaker tries to get the train to slow down so

the BRC can't move in. I'm going to deny it without

prejudice and see how I rule. And if you want to try and

intervene at that point on preemption, then you can take

it up, maybe they won't even need to intervene on

preemption after your Honor rules. Who knows how your

Honor is going to rule?

But for them to come here and say slow down

everything for weeks because I'm on vacation and the

speaker just decided the preliminary injunction was lost,

that's definitely how the train slows down and at the

same time prevents my clients from moving in. That's

outrageous, your Honor.

MR. METZLER: The outrageous part is you're the

ones who noticed --

THE COURT: Please, counsel, I've heard enough,.

Mr. Metzler, I am going to adhere to my

suggestion that you be permitted to put in papers on the



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preemption, and as to the other two issues you raised and

the parties will be entitled to object as to -- well, do

I have a stipulation by all parties that he can -- that

the City Council can intervene as to the preemption

issue?

MR. CONNOLLY: This is Dan Connolly. CFC so

stipulates.

MR. KING: We will stipulate to preemption only,

your Honor. Municipal respondents, I think we agree with

Mr. Mastro's suggested approach here. I do agree with

Mr. Mastro as well. Mr. Mastro couldn't have said it

himself better why they shouldn't be allowed to rule on

issues that they didn't feel were important enough to

intervene on originally.

MR. MASTRO: Your Honor, because your Honor is

asking us to do this, I would recommend to my clients

stipulating to intervene only on preemption, if they get

their papers in this week so we're not delayed and

prejudiced.

THE COURT: So, I'm going to permit them, also

over objection, to address the others two issues that

have been raised, interpretation of the administrative

code regarding multiple contracts and the issue regarding

the Camp LaGuardia exception.

I know in making this determination that the



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City Council was not given any notice that the preemption

argument would be made. I think it's appropriate that

they be permitted to submit papers in connection with

that argument as well as the other two issues,

notwithstanding your objection, but I will review your

objections in the submission and make a determination as

to whether I will address the City Council's papers in

connection with the 200-bed limit and the Camp LaGuardia

exception. All right.

Mr. Metzler, however, you need to move forward

quickly. You need to have your papers in by August

the 10th. Can opposition be submitted by the 17th of

August?

MR. METZLER: Your Honor, the short answer is

yes, and we'll try to submit sooner than that, but we

want your Honor to rule.

THE COURT: I understand that. We're working on

it, we will continue to work on it. Obviously with

additional papers it may take a little bit longer, but

I'm trying to do this as promptly as I can, considering

my other judicial responsibilities, I an still engaged in

this, I think it's a seven week complex asbestos

litigation trial at this point. Hopefully that trial

will be concluded next week. But it is being worked on,

and I'm trying to do it as quickly as possible.



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MR. MASTRO: Your Honor, you've been great.

It's an additional burden being brought upon you. We

think it's unfair. We'll respond as quickly as we can if

we get these papers on the 10th.

THE COURT: In terms of the procedural issues,

this stipulation on the record will be the basis of the

intervention, can we deem it an order to show cause, does

anybody object?

MR. CONNOLLY: No objection, your Honor.

THE COURT: Counsel?

MR. METZLER: I'm sorry, your Honor, I lost

track of what we were --

THE COURT: Just in connection with the

procedural issues, how to get. Let me rephrase that.

The procedural issues regarding the

intervention. If you're stipulating that the City

Council can intervene, then the City Council can submit

papers -- I think this will satisfy -- will submit papers

in connection with the opposition by August the 10th and

the other parties will have until August the 17th to

respond. I can move that up to August 15th.

MR. KING: Your Honor, we would need the 17th.

THE COURT: Who is that, Mr. King?

MR. KING: Yes.

MR. METZLER: Your Honor, I understand that this



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needs to be done quickly. As I said we're not trying to

delay. I literally get back from vacation, I can't write

the papers where I am. I am getting back from vacation

the day before you're having the papers due. If we could

just have to the end of the week, I think it would,

frankly, make the papers much more valuable to the court.

THE COURT: Isn't there anybody else in your

office who can help with the papers, Mr. Metzler?

MR. MASTRO: Your office --

MR. METZLER: Mr. Mastro, you don't know

anything about our office.

MR. MASTRO: I do know something about your

office.

THE COURT: Mr. Mastro, please.

MR. METZLER: It is not a big office.

MR. MASTRO: You can get it done by the 10th

because you want to intervene, now we're being asked to

sit here. You get it done.

MR. METZLER: Mr. Mastro, please, you don't know

anything about our office.

THE COURT: Mr. Metzler, can you answer my

question?

MR. METZLER: No, it is not a large office, your

Honor. The General Counsel's office, the City Council,

will be working on these papers, six attorneys, only two



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of whom are litigators.

THE COURT: Are you one of those two?

MR. METZLER: I am one of the two, and then we

have an employment counsel and we have a lot of

legislative counsel, Mr. Mastro is correct on that, but

our legislative counsel, they do not know how to litigate

and cannot write briefs, they write legislation.

THE COURT: Can other litigation counsel work on

this while you're away?

MR. METZLER: She may be able to work on it,

yes, your Honor, but I don't think we'll be able to have

it in by the 10th.

THE COURT: When do you return? August 8th is

Monday. I assume you're returning on August the 8th.

MR. METZLER: I'm returning at about noon on

August the 8th.

MR. CONNOLLY: Perhaps August 12th, that Friday.

THE COURT: August 12th.

MR. METZLER: Thank you.

THE COURT: Mr. Mastro and the City is August

the 19th sufficient?

MR. MASTRO: Yes, your Honor.

THE COURT: August the 19th.

MR. METZLER: Yes, your Honor.

THE COURT: Shall I say submission only unless I



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direct you to come in for oral argument?

MR. CONNOLLY: I have no objection with that,

your Honor. This is Dan Connolly.

MR. METZLER: That's fine by the City, as well.

MR. KING: It's fine by the City Council, your

Honor.

THE COURT: August the 12th for submission by

the city Council and August the 19th I guess they're

opposition, and it will be submitted as of that date.

Mr. Mastro, I received your letter regarding the

schedule for occupancy of the building. Have the other

parties received Mr. Mastro's letter?

MR. CONNOLLY: Actually, I don't believe the

City Council was included on that, your Honor.

MR. METZLER: We have not received anything,

your Honor. We, the city council, did not receive

anything.

THE COURT: Mr. Mastro, would you send them a

copy?

MR. MASTRO: I certainly would, your Honor,

there's been an update since, your Honor, which is,

again, the speaker is going hold off on a particular --

THE COURT: One moment. I'm just opening

another letter that's dated August 1st. Is that your

most recent submission, I assume, Mr. Mastro?



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MR. MASTRO: Yes, your Honor, that's what I was

explaining, the prejudice of the speaker itself is going

to --

THE COURT: Mr. Mastro, the court reporter is

having a difficult time understanding, so start from the

beginning of that sentence, please.

MR. MASTRO: The speaker herself was complaining

earlier from the taking all this time to write their

papers, at the same time the speaker has been prevailing

upon the State agency which has the last approval

necessary for us to move the adult shelter and reception

center in the building, all other approvals in Manhattan,

and we still have to have the final decision in this case

and they want all this time to put in their papers.

So right now, your Honor, we have all the detox

in, except this one state agency because the speaker has

been leaning on them about waiting for a final decision

in this case.

THE COURT: I'm sorry, Mr. Mastro, that's in

connection with the 32-bed detox unit?

MR. MASTRO: The detox unit is in.

THE COURT: Yes, what -- is it the two hundred

-- I'm sorry, is it the shelter or reception center?

MR. MASTRO: Both the 200-bed shelter and the

reception shelter has not been able to move in yet.



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There's one more State agency approval that Speaker Quinn

has intervened at the state level to urge them to hold

off until your Honor moves.

MR. CONNOLLY: Your Honor, I have to say, Mr.

Mastro has in the past lectured me, certainly, and the

court about trying to litigate this case by letter and

his accusations and the insertion of irrelevant -- and

who knows whether or not they're valid -- factual

assertions by letter and by statement is grossly

inappropriate. And I would ask the court, A, for his

failure to serve the City Council of this letter and

because of its general inappropriateness, the court

rejects this letter as the court had rejected efforts --

MR. MASTRO: I served this letter on the City

Council, your Honor.

MR. METZLER: I didn't receive it.

MR. MASTRO: I absolutely did, Mr. Metzler. It

is not an e-mail message.

MR. CONNOLLY: It's not either an e-mail

message. When was this letter delivered?

MR. MASTRO: It was delivered today, your Honor.

MS. OVESEY: Your Honor, this is Michele Ovesey,

General counsel for Homeless Services.

What Mr. Mastro says is correct. It's our

understanding from the State agency in question, as well,



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that they are waiting for your Honor's ruling.

MR. CONNOLLY: I don't know if Miss Ovesey is

testifying.

MS. OVESEY: I'm not testifying. I'm just

stating a fact.

THE COURT: What department is that?

MS. OVESEY: I'm the general counsel for

Department of Homeless Services. And it's our

understanding from the State agency in question that they

are going to be withholding their approval until there's

a decision from the court.

THE COURT: And what was the state agency in

question?

MS. OVESEY: It's the Office of Temporary

Disability Assistance.

MR. CONNOLLY: I just don't think it's

appropriate for the court to be taking factual evidence

and representations, whether it's from the general

counsel of an agency or counsel for respondent. I just

don't think it's appropriate at this point. You sort of

ruled on this. You directed us all in the past not to do

this, and I don't know the validity of any of these

representations regarding the State agency. I figure

this is, quite frankly, completely irrelevant to this

proceeding as to where we are procedurally in this matter



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City Council will take.

THE COURT: I can't recall. I don't have the

papers before me.

MR. METZLER: We appreciate all your time, your

Honor. Thank you for all the attention you've given to

this case.

THE COURT: And I would request, however, that

factual assertions not be sent to me in letters. The

motion has been submitted. I'm now going to accept

additional papers but it's really not appropriate for

additional arguments or issues related to what's happened

after the submission to be presented to me. As I said, I

understand the urgency of the situation.

MR. MASTRO: I appreciate that, too, your Honor.

We did not want to take all of that time for motion

practice as your Honor has cut through it. I wanted to

put before your Honor very quickly the concerns we had.

And your Honor asked us to pursue a certain course, we

will pursue that course and we appreciate it.

MR. METZLER: Will you consider that letter

withdrawn?

MR. MASTRO: I'm not withdrawing the letter, no.

THE COURT: I'm stating for the record I'm not

going to consider the letters. I asked Mr. Metzler to

inform the court of the scheduling.

mun. resp. exh d - (# legal 3126902)

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