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BUSINESS & RESD ALINCE OF EST HARLEM v. MARTINEZ

August 19, 2003

BUSINESS AND RESIDENTS ALLIANCE OF EAST HARLEM, AN UNINCORPORATED ASSOCIATION; RAYMOND PLUMEY, P.C.; THOMAS DONAVAN, JOHN KOZLER, IRENE SMITH, CHARLES IULO, PASQUALE PALMIEREI, AND GLORIA QUIONES, PLAINTIFFS, AGAINST MEL MARTINEZ, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, TOMMY THOMPSON, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UPPER MANHATTAN EMPOWERMENT ZONE CORPORATION, NEW YORK EMPOWERMENT ZONE CORPORATION AND TIAGO HOLDINGS, LLC, DEFENDANTS


The opinion of the court was delivered by: John Keenan, Senior District Judge [ Page 2]

MEMORANDUM OPINION AND ORDER

Background

This is an application for a preliminary injunction relative to old vacant factory buildings located in the East Harlem area of Manhattan along the FDR Drive between 116th and 119th Streets. They were known as the Washburn Wire Factory.

Plaintiffs are an unincorporated association of East Harlem residents, an architect, and a group of local residents and property owners. They are suing the U.S. Department of Housing and Urban Development ("HUD"), the U.S. Department of Health and Human Services ("HHS") (collectively "the Federal Defendants"), the Upper Manhattan Empowerment Zone Corporation ("UMEZ"), the New York Empowerment Zone Corp. ("NYEZ") (collectively "the State Defendants"), and Tiago Holdings, LLC ("Tiago" or private defendant). The State Defendants are New York corporations whose function is to foster development in the area near the proposed project. Tiago is the owner of the Washburn Wire Factory ("the Factory"). They hired Seasons Contracting Corporation ("Seasons") to demolish the Factory.

Plaintiffs seek a preliminary injunction enjoining (i) the Federal Government Defendants from providing any federal funding or any other support to the demolition of the remaining portions of the Washburn Wire Factory (the "Factory") located at the aforementioned site until the Government Defendants demonstrate compliance with Section 106 of the National Historic [ Page 3]

Preservation Act ("NHPA"), and (ii) the state and private defendants from demolishing the Factory until there has been compliance with Section 106. For the reasons outlined below, the application for a preliminary injunction is denied.

Plaintiffs claim that the Factory is a historic structure which they acknowledge has been vacant since 1976. See Compl. ¶ 21. They further admit "[m]much of the Factory has already been demolished . . . ." Id. ¶ 23. Salvatore Carlucci, President of Seasons, the company responsible for demolishing the Factory, in his August 7, 2003, affidavit in opposition to this application, points out that the Department of Buildings "approved the first demolition permit for the premises on May 18, 1999" and that the permit has been renewed and is still "in effect." Affidavit of Salvatore Carucci ("Carucci Aff.") ¶ 4. He goes on to state:

5. The actual demolition of the buildings began in full approximately five months ago. Of the eight buildings that comprise the premises, only one building remains intact: a one-story building which is essentially a slab with a roof that measures about 30 feet in length. In addition, a portion of a former five-story building has been partially demolished and only three stories remain. The demolition of the other buildings is complete. In my estimation, more than 85% of the former Washburn Wire Factory has been demolished.
6. The BEST squad (Buildings Emergency Safety Team) at the Department of Buildings is requiring that the portions of the former five-story building be demolished by hand instead of by mechanical demolition, because its proximity to the FDR Drive creates a potentially unsafe condition. Assuming uninterrupted work, I believe that this building will be fully razed within the next two weeks.
Id. ¶¶ 5, 6.

Carucci, who has 25 years experience in the demolition [ Page 4]

business, states that stopping the demolition "will create a hazardous condition . . . to workers on the premises and to vehicles and pedestrians in the vicinity." Id. ¶ 7. Attached to his affidavit are photographs confirming the assertions in the affidavit. Id. Ex. "PHOTOS".

The demolition of the Factory has been known to the public for years. Articles about the demolition and project have been published in the Daily News. See Declaration of Lawrence H. Fogelman, Ex. C (4/16/98); Id. Ex. D (9/20/99).

The Factory is not included in the National Register. See Plumey Aff., Ex. F (Letter from Carol D. Scholl, Keeper of the National Register of Historic Places). The New York State Historic Preservation Office (SHPO) concluded in November 1999 that the Factory doe not meet the criteria for inclusion in the National Register. Blick Aff. ¶¶ 9-10. The appeal of this determination was denied in May 2000. Plumey Aff. ¶ 20; Id., Ex. F.

Standards for a Preliminary Injunction

To obtain a preliminary injunction in this Circuit, a party must demonstrate in the absence of the injunction (1) that the party will suffer irreparable harm and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them fair ground for litigation and a balance of hardships tipping decidedly in the mutant's favor. Random House. Inc. ...


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