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September 8, 2004.


The opinion of the court was delivered by: DEBORAH BATTS, District Judge


Before the Court are Plaintiff Board of Managers of Soho International Arts Condominium's (the "Board") and Defendants City of New York (the "City"), the New York City Landmarks Preservation Commission's (the "Commission") (collectively the "City Defendants") Cross Motions for Summary Judgment to determine whether the Commission violated Plaintiff's rights under the First, Fifth, and Fourteenth Amendments of the United States Constitution, the New York State Constitution, and New York state law when it prevented the permanent removal of a prominent work of art (the "Work") installed on the exterior of Plaintiff's building located at 599 Broadway, New York, New York ("599 Broadway" or the "Building"). The Municipal Arts Society ("MAS") has also filed a Motion to File a Brief of Amicus Curiae; no party has filed any papers concerning the MAS' Motion. The Court accordingly GRANTS the Motion and will review the MAS' briefing papers.

  For the reasons that follow, Plaintiff's Motion is DENIED in its entirety and City Defendants' Motion is GRANTED in part and DENIED in part. I. FACTUAL BACKGROUND

  The Court presumes familiarity with its Opinion of June 17, 2003, which granted in part and denied in part both Plaintiff Board's and Defendant Forrest Myers' ("Myers") Cross Motions for Summary Judgment. Board of Managers of Soho International Arts Condominium v. City of New York, 01 Civ. 1226 (DAB), 2003 WL 21403333 (S.D.N.Y. Jun. 17, 2003) (hereinafter "Board I"), motion for reconsideration denied, 2003 WL 21767653 (S.D.N.Y. Jul. 31, 2003) (hereinafter "Board II").

  A. Origin of the Wall

  599 Broadway ("599 Broadway" or the "Building") is a twelve-story loft structure, built in 1917 and organized into a condominium in 1983.*fn1 (Pl. 56.1 Stmt. ¶¶ 1, 5, 43; City Defs. 56.1 Stmt. ¶¶ 1-3.) An eight-story building abutted 599 Broadway on its northern side until it was torn down in the 1940s when the City widened Houston Street by eminent domain. (Pl. 56.1 Stmt. ¶ 6; City Defs. 56.1 Stmt. ¶ 4.) The condemnation and clearance of that building left only its southernmost wall intact, and this remnant was anchored to 599 Broadway by a series of braces to ensure structural support. (Pl. 56.1 Stmt. ¶ 8; City Defs. 56.1 Stmt. ¶ 4.)

  This anchor system formed a rectangular grid pattern of seven rows with each row containing six braces. These forty-two braces were, in turn, affixed to 599 Broadway's exterior by rods which penetrated the Building's northern wall and were embedded in its floor slabs. (Pl. 56.1 Stmt. ¶ 8; City Defs. 56.1 Stmt. ¶ 4.)

  In 1972, the then-owner of the Building Charles Tanenbaum ("Tanenbaum") consented to the installation of the Work on 599 Broadway's northernmost wall under the auspices of City Walls, Inc. ("City Walls"), a non-profit organization. (Pl. 56.1 Stmt. ¶¶ 9-11; City Defs. 56.1 Stmt. ¶ 5.) The Work was created by Myers, who utilized the braces on 599 Broadway and created a three-dimensional work by bolting four-foot aluminum bars perpendicularly to each of the forty-two steel braces on 599 Broadway's northern wall. (Pl. 56.1 Stmt. ¶ 11; City Defs. 56.1 Stmt. ¶ 7.) The necessary government permits were obtained by Tanenbaum and City Walls, and the Work was installed. (Pl. 56.1 Stmt. ¶¶ 9-20; City Defs. Reply to Pl. 56.1 Stmt. ¶¶ 9-20.)

  Affidavits from both sides state that the Work cost $10,000 to fabricate and install. (Topping Aff. ¶ 25; Silberman Aff. ¶ 18.) The Board has paid the bulk of the maintenance costs of the Work and 599 Broadway's exterior wall, although the Public Art Fund ("PAF") has contributed over the years a modest sum for the Work's upkeep. (Topping Aff. ¶ 6; Silberman Aff. ¶ 36.)

  There are no documents in the record that indicate who owned the Work at the time of the installation. Neither party has submitted any evidence regarding whether any change in ownership has occurred since the Work's installation in 1973. Finally, as noted in Board I, "there is no documentation between [City Walls and Myers] addressing ownership of or title to the Work," and both Myers and Plaintiff Board "vigorously dispute" ownership and title. Board I at *4, *20 n. 24.*fn2 City Walls and its successor PAF have never claimed a proprietary interest although they may have contributed significantly towards the Work's original creation and installation. Board I at *4 (noting that Plaintiff and Defendant Myers both acknowledged that the "cost of the project . . . was funded by City walls with grants from Chase Manhattan Bank, the National Endowment for the Arts, and Tanenbaum").

  B. Designation of Landmark District

  Pursuant to the Landmark Preservation Law ("Landmarks Law"), N.Y.C. Code § 25-303, the Commission designated the SoHo-Cast Iron Historic District (the "District") on August 14, 1973 and designated its boundaries as Canal Street, Broadway, Crosby Street, and West Broadway.*fn3 (Pl. Exh. 32; Pl. 56.1 Stmt. ¶ 23; City Defs. 56.1 Stmt. ¶ 11.) The District encompasses twenty-six city blocks and about 500 buildings. (Pl. Exh. 32 at 1; City Defs. 56.1 Stmt. ¶ 11.) In designating the District, the Commission composed a SOHO-CAST IRON HISTORIC DISTRICT DESIGNATION REPORT ("Designation Report") in which it chronicled the buildings in the District and their historical and aesthetic importance and also detailed the rationales behind the creation of the District, including the fact that the District has a "collection of well preserved cast-iron structures, now unrivalled in the world." (Pl. Exh. 32 at 1.) The Report also remarked that the District "is fast becoming one of the most important creative centers of contemporary art in the nation," and credited this artistic revitalization as key to "the preservation of a unique concentration of structures of great historic significance." (Id. at 8.)

  The Designation Report did not mention the Work explicitly; it referred to the actual Building only once, observing:
#599-601 (through to Mercer)
(Southwest corner W. Houston)
Completed: 9/5/1917
Architect: J. Odell Whitenach
Original Owner: Frederick Ayer
Original Function: Store and lofts
12 stories; 6 bays (outer bays are double windows)
(Id. at 50.)
The Report did not reference the Work because Myers had not yet completed it at the time of the District's designation. (Pl. 56.1 Stmt. ¶ 31; City Defs. 56.1 Stmt. ¶ 11.) Tanenbaum wrote to the Commission shortly after the District was designated to "raise a question with regard to the completion of a City Walls project now in progress." (Pl. Exh. 14.) Detailing the approvals the Work had already received from various city agencies, Tanenbaum indicated that the Work was currently in the process of installation, that he hoped "no formal proceedings will be necessary before [the] Commission," and that any advice was welcomed "as to what, if any, further steps" were required. (Id.) On September 19, 1973, the Commission responded to Tanenbaum, indicating that the Commission did not demand any further action. (Pl. Exh. 15 (citing section 207.20.0).)*fn4

  C. Initial Efforts to Repair and/or Remove the Work

  On February 2, 1981, the Building's then-owner, 599 Associates, applied to the Commission for permission to make repairs to 599 Broadway's northern wall. (Pl. 56.1 Stmt. ¶ 46; City Defs. 56.1 Stmt. ¶ 14.) On March 11, 1981, the Commission granted its permission for the owner to undertake the necessary repair work (Pl. Exh. 21), which was duly performed. (Pl. 56.1 Stmt. ¶ 47; City Defs. 56.1 Stmt. ¶ 15.)

  In 1983 and 1984, the Commission charged Plaintiff with violations of the Landmarks Law, because of its display of an unauthorized sign on the Building's wall. (City Record at 47-49;*fn5 City Defs. 56.1 stmt. ¶ 17.) The sign "partially obscure[d] the sculpture designed by Forrest Meyers [sic]," and the Board's application to continue the sign's display was denied by the Commission on September 19, 1984. (City Record at 49.)

  By 1987, the northern wall was again in a state of disrepair. The Building's managing agent applied to the Commission for permission to apply waterproofing to the northern wall and to remove the Work on August 28, 1987 because the wall constituted "an unsafe condition." (Pl. Exh. 23.) The Commission responded by letter to the Building's request on September 14, 1987, in which it noted "that removal of the sculpture will require a public hearing because it is a highly visible addition to a designated building within the Soho — Cast Iron Historic District." (Pl. Exh. 24.) The letter recommended that the Building withdraw its request to remove the Work and instead to seek permission to repair the wall; the application for removal of the Work could then be submitted separately, thus obviating the need for a public hearing for urgent repairs. (Id.) The managing agent subsequently withdrew his request to remove the mural in order to repair the wall. (Pl. 56.1 Stmt. ¶ 49; City Defs. 56.1 Stmt. ¶ 18.) On March 22, 1988, the Commission issued a permit which outlined the authorized repair work, including the repair of the wall's masonry and waterproofing of both the Work and the wall. (Pl. Exh. 26.) There is no record that the Board submitted a application for removal for a decade. In 1997, the Board again contemplated the repair of the wall and the removal of the work.*fn6 Plaintiff sought the Commission's permission on an emergency basis to remove the Work from the Building's northern wall on October 20, 1997. (Pl. Exh. 27; Pl. 56.1 Stmt. ¶ 51; City Defs. 56.1 Stmt. ¶ 20.)

  The Commission approved the "interim removal of unstable steel braces, along with the attached projecting sculpture," and the easternmost row of braces was removed. (Pl. Exh. 28.) The Commission found that "the work would eliminate a potentially unstable condition, and that the work would allow for an inspection of the condition of the braces, structural attachments, and the underlying masonry, and enable the applicant to develop a proposal to address structural deterioration and future reinstallation of the sculpture, if feasible." (Id.) The permit did not indicate that reinstallation of the braces was required nor did it give a time frame for such an action; however, it did explicitly provide that "any future proposal . . . to reinstall the sculpture, may be approved . . . [and any] proposal to permanently eliminate portions, or the entirety, of the braces, sculpture, or the underling masonry, will be reviewed at a public Hearing for a Certificate of Appropriateness." (Id.)

  The removal of the easternmost braces allowed for inspection of the extent of the deterioration of the wall and the bracing system. The masonry was in poor condition as were the channel irons and braces located both on the interior and exterior of the northern wall. (Pl. 56.1 Stmt. ¶¶ 53-55; City Defs. 56.1 Stmt. ¶¶ 31-32.) The Board retained Rand Engineering ("Rand") to investigate and recommend ways to repair the wall. In its Engineering Report ("Engineering Report"), Rand recommended that the bracing structure be internalized,*fn7 thus eliminating the structural elements upon which the Work was installed. (Pl. Exh. 29 at 9.) The Engineering Report further advised that were the Work to be reinstalled, a replica made of lightweight material and affixed in different locations than the original would avoid creating any structural problems. (Id.) D. The Commission's Denial of the Certificate of Appropriateness

  The Board then decided in 1997 that it would seek approval to remove the Work permanently. The Commission treated the application to remove the Work permanently as an application for a certificate of appropriateness ("COA") under the Landmarks Law. (pl. 56.1 Stmt. ¶ 67; City Defs. 56.1 Stmt. ¶ 21.)

  During the Commission's review of the Board's COA to remove the Work, Plaintiff submitted a proposal to keep the Work in place while installing an advertisement on the northern wall just above the Work. (City Record at 302-03.) However, because the Board felt that the proposal would not be granted, Plaintiff withdrew the proposal at a May 16, 2000 hearing before the Commission, and has not filed another advertising proposal. (Pl. Response to City Defs. 56.1 Stmt. ¶ 8; City Record at 1115, 1163.)

  The Commission held public hearings on the Board's application on January 27, 1998, June 29, 1999, May 16, 2000, and July 11, 2000. (Id. at 1000-1227.) At these hearings, Plaintiff, its lawyers, and Rand Engineering testified in support of the Board's application and also sent to the Commission various written submissions. (Id. at 1005-20; 1066-1074; 1078-88; 1115-44; 1170-71; 1198-1226.) The Commission also heard from the Myers and his wife (Id. at 1025-35; 1038-40; 1089-97; 1147-1156; 1189-1194), as well as an organized cadre of witnesses of art gallery owners, artists, art critics, celebrities and elected officials, who praised the Work as influential and important. (Id., passim.)*fn8 There was only one dissenting opinion, that of Louis Torres, an art critic, who told the Commission at length that under no circumstances was the Work to be considered a piece of art. (Id. at 1057-59.)

  On October 18, 2000, the Commission voted unanimously to deny Plaintiff's application for a COA to remove the Work. (Id. at 1228-1268.) Its formal written denial on November 13, 2000 articulated the Commission's findings:
that the sculpture, conceived of in the early 1970s and installed in 1973, is a highly acclaimed work of art . . .; that the sculpture is by Forrest Myers, an important American artist; that Mr. Myers lived and worked in Soho during the 1960s and 1970s and was one of the pioneering artists who moved into Soho, that these artists adaptively reused the cast iron buildings and transformed the area into a nationally and internationally acclaimed center of contemporary and avant-garde art, and that Mr. Myers conceived of and installed the sculpture during this important time in the district's and city's history; that the sculpture was conceived of and installed contemporaneously with the designation of the district, that from the time it was installed in 1973, the sculpture became a symbol of Soho due to its presence at the prominent intersection of Broadway and Houston Street, and that during the intervening 28 years it has come to be known and experienced as the "gateway" to Soho; that the installation of the sculpture, through attachment to the pre-existing tie rods and channel irons that brace the northern façade has not damaged original or historic material; . . . that the sculpture can be reinstalled and maintained on the refurbished wall without causing damage to the wall or building; that the placement of the sculpture and its scale and color do not detract from, and are harmonious with, the significant architectural features of the building and the historic district; that the sculpture is evocative and representative of a significant era in the district's and city's history, when the cast iron buildings were being adaptively reused by artists and the area was being transformed into a world class center for contemporary and avant-garde art, and which era and transformation contributed significantly to the preservation of the cast iron buildings; and therefore, for all the above reasons, the sculpture contributes to the special architectural and historic character of the historic district and that its permanent removal will adversely affect the district's special sense of place. Based on these findings, the Commission determined the [removal of the Work] to be inappropriate to the building and to the Soho-Cast Iron History District, and voted not to approve the application.
(Pl. Exh. 30.)

  Shortly thereafter, Plaintiff brought suit in this Court.

  During the pendency of this action, Plaintiff requested a Certificate of No Effect ("CNE") from the Commission to effectuate repairs on the northern wall of the Building. In early 2001, the Board submitted a revised application in accordance with the Commission's requirements, in which it proposed to remove the Work, repair 599 Broadway's northern wall, fabricate lightweight replicas of the Work, and reinstall the Work. (Pl. 56.1 Stmt. ¶ 76; City Record at 1694-1701.)

  The Commission granted a CNE on August 27, 2002 which permitted the proposed repair work to commence. It specifically approved "removing existing steel channels and the attached projecting aluminum sculpture; cutting back existing through-wall bolts and filling the voids with grout; removing and replacing deteriorated brick . . .; installing new aluminum channels and projecting aluminum sculpture, to match the existing [Work], anchored to the existing floor structure of 599 Broadway with new threaded stainless steel rods." (Pl. Exh. 31.) The Work would be affixed to the wall in slightly different locations than the original Work to protect the wall's structural integrity. (Pl. 56.1 Stmt. ¶ 80; City Defs. 56.1 Stmt. ¶ 36.)

  E. Other Buildings and Attempts at Removal of Art in SoHo

  The Work was not the only project that City Walls undertook in the 1960s and 1970s. In the SoHo-Cast Iron Historic District alone, City Walls oversaw the creation of at least three other prominently displayed artworks: (1) a wall painting on 600 Broadway ("600 Broadway") by artist Mel Pekarsky ("Pekarsky"), (2) a wall painting on 169 Mercer Street ("169 Mercer") by artist Dorothy Gillespie ("Gillespie"), and (3) a wall painting on 475 West Broadway ("475 West Broadway") by artist Jason Crum ("Crum"). (Pl. 56.1 Stmt. ¶ 66(a); City Defs. 56.1 Stmt. ¶¶ 51-59.) Like the Work, these three artworks were displayed on their respective buildings' exterior walls.

  The painting on 600 Broadway was completed before the designation of the SoHo-Cast Iron Historic District. In 1992 and 1996, the Commission approved two COAs which permitted the installation of large-scale advertisements on the exterior wall where the Pekarsky painting had stood. (Pl. Exhs. 35-37; City Defs. 56.1 Stmt. ¶ 52.) The owners of 600 Broadway never petitioned or received the approval of the Commission to remove the two-dimensional painting. Finally, none of the Commission's approvals of COAs in 1992 or 1996 mention whether Pekarsky's painting still existed. It's fate, and the Commission's role, if any, in it, are unclear. (Pl. Exhs. 35-37.)

  Gillespie's painting on 169 Mercer was created two years after the designation of the District, and the Commission explicitly approved of the artwork's display on the eastern part of the northern wall fronting Houston Street. (Pl. Exh. 38; Pl. 56.1 Stmt. ¶ 66(b); City Defs. 56.1 Stmt. ¶ 52.) Both parties agree that the two-dimensional painting soon deteriorated to the point where it was no longer visible. (Pl. 56.1 Stmt. ¶ 66(b); City Defs. 56.1 Stmt. ¶ 55.) In 1981, the Commission permitted the owners of the building to install new windows in the same place as Gillespie's work; there is no mention, however, of the art in the permit. (Pl. Exh. 40.) Fifteen years later, the Commission approved the installation of a large-scale advertisement where the painting had been, and Gillespie herself had given permission for the removal of her work and the installation of the advertisement. (Pl. Exh. 41; City Record at 228; City Defs. 56.1 Stmt. ¶ 55.) Again, the Commission's approval did not explicitly mention Gillespie's work. (Id.)

  475 West Broadway abutted a vacant lot in the 1960s, during which its owner consented to a two-dimensional wall painting to be painted by Crum. In the early 1980s, the owner of the vacant lot constructed a two-story building on his property. As a result, Crum's painting was significantly obscured, perhaps as much as half. (City Defs. 56.1 Stmt. ¶ 57.) In 1998 and 2000, the Commission approved the building owner's applications to install advertisements on the exterior wall where the Crum painting had been. (Pl. 56.1 Stmt. ¶ 66(c); City Defs. 56.1 Stmt. ¶¶ 58, 59.)

  All three works of art were two-dimensional paintings that did not have any three-dimensional components nor were they incorporated into any special structural support system in their respective buildings (apart from being painted on the walls themselves). (Pl. 56.1 Stmt. ¶ 66; City Defs. 56.1 Stmt. 51-59.)

  F. Procedural History of the Case

  After the Commission's denial of the COA in the fall of 2000, Plaintiff filed this suit. The Board's Complaint contains six claims against the City, the Commission, and Myers. The claims against the City Defendants are: (1) a § 1983 claim alleging violations of the Plaintiff's First, Fifth, and Fourteenth Amendment rights, (2) a claim under New York law for the Commission's purported violations of the New York State Constitution which are analogous to the first cause of action, and (3) a claim alleging that the Commission exceeded its statutory jurisdiction under New York law pursuant to Article 78 of the New York Civil Practice Law and Rules ("CPLR"). (Compl. ¶¶ 62-75.) The sixth claim, which alleged that the Commission had improperly delegated power to a private citizen in violation of New York law was dismissed by a Stipulation of Dismissal, so ordered by this Court on July 24, 2003. (Stip., Jul. 24, 2003.)

  As directed by the Court, Plaintiff and Defendant Myers filed cross motions for summary judgment, both of which the Court granted in part and denied in part in its June 17, 2003 Opinion.*fn9 Plaintiff and City Defendants now cross move for summary judgment on the first three claims in the Complaint.


  A. Summary Judgment Standard

  A district court should grant summary judgment when there is "no genuine issue as to any material fact," and the moving party is entitled to judgment as a matter of law. Fed.R. Civ. P. 56(c); see also Hermes Int'l v. Lederer de Paris Fifth Ave., Inc., 219 F.3d 104, 107 (2d Cir. 2000). Genuine issues of fact cannot be created by mere conclusory allegations; summary judgment is appropriate only when, "after drawing all reasonable inferences in favor of a non-movant, no reasonable trier of fact could find in favor of that party." Heublein v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993) (citing Matsushita Elec. Industr. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

  In assessing when summary judgment should be granted, "there must be more than a `scintilla of evidence' in the nonmovant's favor; there must be evidence upon which a fact-finder could reasonably find for the non-movant." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A court must always "resolv[e] ambiguities and draw [] reasonable inferences against the moving party," Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986); however, the non-movant may not rely upon "mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Id. at 12. Instead, when the moving party has documented particular facts in the record, "the opposing party must, `set forth specific facts showing that there is a genuine issue for trial.'" Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986) (quoting Fed.R. Civ. P. 56(e)). Establishing such facts requires going beyond the allegations of the pleadings, as the moment has arrived "`to put up or shut up.'" Weinstock v. Columbia University, 224 F.3d 33, 41 (2d Cir. 2000) (citation omitted). Unsupported allegations in the pleadings thus cannot create a material issue of fact. Id.

  When a party fails to oppose a motion for summary judgment on a particular claim, "the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial." Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (quoting Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001)). "Moreover, in determining whether the moving party has met this burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts contained in the moving party's Rule 56.1 statement. It must be satisfied that the citation to evidence in the record supports the assertion." Id. at 244 (citing Giannullo v. City of New York, 322 F.3d 139, 143 n. 5 (2d Cir. 2003)).

  Finally, for cases in which both sides move for summary judgment, a district court need not grant judgment as a matter of law for one side or the other. Schwabenbauer v. Bd. of Educ. of Olean, 667 F.2d 305, 313 (2d Cir. 1981). Instead, it must evaluate "each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Id. at 314.

  B. The Landmarks Preservation Law

  In 1965, the New York City Council enacted the Landmarks Law "to protect historic landmarks and neighborhoods from precipitate decisions to destroy or fundamentally alter their character." Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 110, 98 S.Ct. 2646, 2651 57 L.Ed.2d 631 (1978).*fn10 Indeed, the City Council observed with obvious concern

that many improvements . . . having . . . a special historical or aesthetic interest or value and many . . . representing the finest architectural products of distinct periods in the [city's] history . . . have been uprooted, notwithstanding the feasibility of preserving and continuing the use of such improvements . . . and without adequate consideration of the irreplaceable loss to the people of the city of the aesthetic, cultural and historic values represented by such improvements. . . . In addition, distinct areas may be similarly uprooted or may have their distinctiveness destroyed, although the preservation thereof may be both feasible and desirable. . . .
N.Y.C. Code § 25-301a.
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