In the Matter of Deborah Glick, et al., Appellants,v.Rose Harvey,, et al., Respondents, New York University, Third-Party Respondent.BriefN.Y.June 2, 2015State of New York Court of Appeals BRIEF FOR AMICI CURIAE DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024 1-800-531-2028 - Email: appeals@dickbailey.com -Website: www.dickbailey.com Appellate Division, First Department Supreme Court, New York County, Index No. 103844/12 DEBORAH GLICK, individually and in her representative capacity as Assemblymember for the 66th Assembly District, BARBARA WEINSTEIN, JUDITH CHAZEN WALSH, SUSAN TAYLORSON, MARK CRISPIN MILLER, ALAN HERMAN, ANNE HEARN, JEFF GOODWIN, JODY BERENBLATT, NYU FACULTY AGAINST THE SEXTON PLAN, GREENWICH VILLAGE SOCIETY FOR THE HISTORIC PRESERVATION, HISTORIC DISTRICTS COUNCIL, WASHINGTON SQUARE VILLAGE TENANTS' ASSOCIATION, EAST VILLAGE COMMUNITY COALITION, FRIENDS OF PETROSINO SQUARE, by and in the name of its President, GEORGETTE FLEISCHER, LAGUARDIA CORNER GARDENS, INC., LOWER MANHATTAN NEIGHBORS' ORGANIZATION, SOHO ALLIANCE, BOWERY ALLIANCE OF NEIGHBORS, by and in the name of its Treasurer, JEAN STANDISH, NOHO NEIGHBORHOOD ASSOCIATION, by and in the name of its Co-Chair JEANNE WILCKE, and WASHINGTON PLACE BLOCK ASSOCIATION, by and in the name of its president, HOWARD NEGRIN, Petitioners-Respondents-Appellants For A Judgment Pursuant to CPLR Article 78 -against- ROSE HARVEY, as Acting Commissioner of the New York State Office of Parks, [Caption Continues on Inside Cover] TO BE SUBMITTED BY: DOCKET NO. APL-2015-00053 LAWRENCE B. GOLDBERG, ESQ. LAWRENCE B. GOLDBERG, ESQ. LAWRENCE B. GOLDBERG, P.C. Attorney for Amici Curiae Friends of LaGuardia Place, Inc., and the “Joining Briefing Organizations” 220 Fifth Avenue, 13th Floor New York, New York 10001 (212) 252-8300 Date Completed: April 22, 2015 3? 11¢ Recreation and Historic Preservation, THE NEW YORK STATE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION, PAUL T. WILLIAMS, JR., as the President and the Chief Executive Officer of Dormitory Authority of the State of New York, DORMITORY AUTHORITY OF THE STATE OF NEW YORK, Respondents, VERONICA M. WHITE, as Commissioner of the New York City Department of Parks and Recreation, THE NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, JANETTE SADIK-KHAN, as Commissioner of the New York City Department of Transportation, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, MATTHEW M. WAMBUA, as Commissioner of the New York City Department of Housing Preservation and Development, and THE NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, AMANDA BURDEN, as director of the New York City Department of City Planning and Chair of the New York City Planning Commission, THE NEW YORK CITY PLANNING COMMISSION, THE NEW YORK CITY DEPARTMENT OF CITY PLANNING, CHRISTINE QUINN, as Speaker of the New York City Council, THE NEW YORK CITY COUNCIL, THE CITY OF NEW YORK, Respondents-Appellants-Respondents, -and- NEW YORK UNIVERSITY, As a Necessary Third-Party Appellant-Respondent. STATE OF NEW YORK COURT OF APPEALS -----------------------------------------------------X DEBORAH GLICK, et ano., Docket N0. APL-2015-0053 Petitioners-Respondents-Appellants, For a Judgment Pursuant to CPLR Art.78 -against- ROSE HARVEY, et ano., etc., Respondents-Appellants-Respondents, And NEW YORK UNIVERSITY, As a Necessary Third Party Appellant- Respondent. ----------------------------------------------------X CORPORATE DISCLOSURE STATEMENT OF AMICI CURIAE Friends ofLaGuardia Place, Inc. Bowery Babes NY, Inc., 200 Mercer St. Apartment Corp. 77 Bleeeker Street Corp. and Green Below 14, Community Action Alliance on NYU 2031 and the Parents Teachers Association ofPS 3. Pursuant to Section 500.1(t) of the Rules of this Court, the undersigned counsel for the Amici Curiae Friends ofLaGuardia Place, Inc., Bowery Babes NY, Inc., 200 Mercer St. Apartment Corp., 77 Bleecker Street Corp. and Green Below I4 (true corporate name being Friends ofDowntown Parks, NYC, Inc.), Community Action Alliance on NYU 203] and the Parents Teachers Association of 1 PS 3 certifies that the following corporations are not publically traded and do not have publically traded parent corporations : Friends ofLaGuardia Place, Inc., Bowery Babes NY, Inc., 200 Mercer St. Apartment Corp., 77 Bleecker Street Corp and Green Below 14 (an assumed name for Friends ofDowntown Parks, NYC, Inc.). The other Amici Curiae are not corporate entities. Dated: April 27, 2015 Respectfully Submitted, /Eawrence B. Goldberg LAWRENCE B. GOLD ERG P.C. 220 Fifth Avenue, 13th Floor New York, NY 10001 Tel: (212) 252-8300 Fax: (212) 252-8866 Email: lbg@1bgesg.com /5///"/7"”B7 Z i TABLE OF CONTENTS. Page(s) Table of Authorities iii Statement of Interest of the Amici Curiae. 1 Preliminary Statement. 8 LEGAL ARGUMENTS. 12 POINT I. THE HISTORY OF NYC-PARKS AND LaGUARDIA PARK AND THE OTHER CITY PARKS DEVELOPING THE PARKS AS CITY PARKS. 12 POINT II. LaGUARDIA PARK IS PUBLIC PARKLAND, DEDICATED AND CONTINUOUSLY USED AS A PARK. 25 POINT III. APPELLANTS HAVE ACCEPTED THE FACT THAT LaGUARDIA PLACE WILL NOT BE “WIDENED”. THE LOSS OF THE PARKS THREATENS THE COMMUNITY AND ALL OF ITS RESIDENTS. 33 CONCLUSION. LaGUARDIA PARK AND THE OTHER RECOGNIZED PARKS AT ISSUE HERE ARE “PARKS” AND THEIR CONTINUOUS USE, ENJOYMENT AND ADOPTION BY THE COMMUNITY AND ITS RESIDENTS SHOULD NOT BE ENDED. THE DECISION OF THE APPELLATE DIVISION SHOULD BE REVERSED AND THE DECISION OF THE SUPREME COURT REINSTATED. 37 ii Word Count Statement not paginated List of “Exhibits” not paginated Exhibits “A: through “L” By “tab” iii TABLE OF AUTHORITIES. Page(s) Case Citations. Bravo v. Terstiege, 196 A.D.2d 473, 601 N.Y.S.2d 129 (2nd Dept., 1993) 14,15 Crawford v. Merrill Lynch, Pierce, Fenner & Smith, 35 N.Y.2d 291, 361 N.Y.S.2d 140 (1974) 14 Kingsbrook Jewish Medical Center v. Allstate Insurance Company, 61 A.D.3d 13, 871 N.Y.S.2d 680 (2nd Dept., 2009) 29 Village of Croton-On-Hudson v. County of Westchester, 38 A.D.2d 979, 331 N.Y.S.2d 883 (2nd Dept., 1972), affirmed, 30 N.Y.2d 959, 335, N.Y.S.2d 825 (1972) 31 Official Websites. NYC-Parks website 6,8,17,18 New Yorkers for Parks, 2009, Manhattan City Council Districts 1 and 3. 27,fn.12 “Playgrounds in Parks” is a feature of NYC-Parks found at www.nycgovparks.org/about/history/playgrounds. 9, fn.3 Articles and Publications. Evolution of the Park : Why the Playground is the Heart”. James C. Gamble, Park and Recreation Design issue of elevation, January, 2006 5, fn.2, 30 fn.15 Grounds for movement : green school grounds as sites for promoting physical activity. J.E. Dyment and A.C. Bell, Health Education Research, Vol. 23, NO. 6 (2008) 31, fn.17 iv Healthy Places : Exploring the Evidence, Dr. Howard Frumkin American Journal of Public Health, Vol. 93, No. 9, September, 2003 23,30,36 fn.20 Stories of the City; Little Flower: Was he a Doe or A Thinker?, Douglas C. McGill NY Times, October 9, 1987 20, fn.9 The importance of play and playfulness., Biddy Youell, European Journal of Psychotherapy and Counselling Vol. 10, No. 2 (2008) 31, fn.16 1 STATEMENT OF INTEREST OF THE AMICI CURIAE Friends of LaGuardia Place, Inc.1, the privately organized, not-for-profit “custodian” of LaGuardia Park (which includes its constituent “Adrienne’s Playground”) respectfully submits this Amicus Curie Brief in support of the Appellants’ appeal from the Decision and Order of the Supreme Court, Appellate Division, First Department (Appendix (“A”)- (Volume)1:3-9). This Brief is also offered by other community and neighborhood organizations which have a direct interest in the outcome of this appeal and have joined in this Amicus Curiae Brief. These other groups (sometimes referred to as “Joining Briefing Organizations”) include Bowery Babes (a not-for-profit organization of 2,500 membership “mothers support group”); Community Action Alliance on NYU 2031 (“CAAN2031”, a coalition of 35 local community groups representing more than 10,000 families working to preserve LaGuardia Place and Mercer Street); two cooperative boards of directors (200 Mercer Street Apartment Corporation with 27 apartments and 77 Bleecker Street Corp. with 242 apartments representing the constituent resident owners who need, use and depend on the continued availability of these parks); and additional community organizations: the Parent-Teacher’s 1 Friends of LaGuardia Place, Inc. is the spelling shown in the Office of the New York State Secretary of State. The late Mayor Fiorello LaGuardia spelled his name with a “space” within his last name. There are other accepted spellings, such as in “LaGuardia Place” by the NYC Department of Transportation. For simplicity, this Brief uses the spelling “LaGuardia”. 2 Association for PS 3 – The Charrett School (which advocates for the educational and recreational needs of children) and Green Below 14 (a 501(c)(3) non-profit organization registered in New York State dedicated to improving parks, playgrounds and open spaces below 14th Street). Greenwich Village (compromised of two NYC City Council Districts – 1 and 3) is one of the most “underserved” City neighborhoods with a smaller percentage of its land area for “parks” or for “playgrounds”. Friends of LaGuardia and the joining organizations all offer their perspective (and interest in this appeal’s outcome) to preserve what actual physical areas in Greenwich Village are either “parks” or “playgrounds” for the use, appreciation and benefit of the community’s residents and City visitors and to foster the development of the children of Greenwich Village that have, for decades now, actively used these parks and playgrounds in their “growing up”. Friends of LaGuardia Place, Inc. and its fellow community organizations of different forms and compositions together have a different perspective to offer to this Court in its consideration of the appeal. That perspective is to impress on the Court the important necessity to preserve what little “parkland” exists in Manhattan’s Greenwich Village, which parkland is both loved and used by the community, and to underscore the critical need to promote a healthy outdoor 3 environment to foster positive childhood growth and development for the community’s most vital resource – its children. This Brief by Friends of LaGuardia Place, Inc. (“Friends of LaGuardia”) and the Joining Briefing Organizations offers to the Court details of the consequences of the Appellate Division’s reversal of the Supreme Court’s determination that “LaGuardia Park”, Mercer Playground and LaGuardia Corner Gardens are parkland. The Appellate Division’s Decision signals the beginning of the end for LaGuardia Park despite the three decades of its existence as a public park. The same holds true for Mercer Playground (another City recognized park), for LaGuardia Corner Gardens (a City recognized “community garden” as a sub-set of a park) and for the Mercer-Houston Dog Run. For more than 30 years now, Friends of LaGuardia has been a partner with the New York City Department of Parks (“NYC-Parks”) in the active management and maintenance of LaGuardia Park. The same active management holds true for the other community organizations and their parks as well (such as LaGuardia Corner Gardens, Inc., and Lower Manhattan Neighbors Organization Inc., two of the many appellants). While this Brief concentrates on the perspective offered to the Court by Friends of LaGuardia, that does not diminish the perspectives from the joining organizations as they are mentioned in the Brief as well. 4 Friends of LaGuardia is a New York State not-for-profit corporation (incorporated as LaGuardia Place Beautification Association, Inc. in 1986) with a corporate purpose to improve the available unused land along the easterly side of LaGuardia Place from Bleecker Street north to West Third Street (Manhattan, NYC) to create and maintain a “viewing garden” and a “memorial to former Mayor Fiorello LaGuardia” (the LaGuardia Statue). Prior to its incorporation, Friends of LaGuardia was a grassroots, ad hoc, community organization devoted to transforming this vacant land and creating a parkland for the use and enjoyment by this Greenwich Village neighborhood. Almost singlehandedly, Friends of LaGuardia installed the well-publicized statute of Mayor LaGuardia sculpted by a world-renowned sculptor. Some individuals belonging to Friends of LaGuardia (including members of its Board of Directors) specifically chose to relocate to this geographic location to raise their families and to have their children play in the parks and playgrounds. As with Friends of LaGuardia, the Joining Briefing Organizations are examples of grassroots community groups stepping forward to demonstrate to this Court the importance of these parks to the community, to its residents (of all ages) and to show that these parks have become treasured oases from the Manhattan city- scape. 5 Discussed in Point II below, parks and playgrounds are integral elements for the health and welfare of both children and adults. Parks and playgrounds can be the answer to the need for children and adults “who need to exercise, dream, create and socialize at their own pace and in their own way.” 2 Spearheaded by Friends of LaGuardia with the full cooperation and assistance of various agencies of the City of New York, LaGuardia Park continues for more than thirty (30) years to be a thriving public parkland as a “viewing garden” and more. Friends of LaGuardia continues to work closely with the City agencies (the Departments of Transportation and NYC-Parks) and to foster the availability of LaGuardia Park for public access and use on an everyday basis. For almost thirty (30) years, since the opening of LaGuardia Park, Friends of LaGuardia has been an active partner with the NYC-Parks in the management of LaGuardia Park. In this “partnership”, the NYC-Parks not only provided financial and technical assistance, but it also provided maintenance and events services for LaGuardia Park and for Friends of LaGuardia. For some time now, NYC-Parks has (in its official publications and on its website) advertised LaGuardia Park as a park under its jurisdiction and domain. Both LaGuardia Park (as a “visiting garden” and for the Mayor’s statue) is a “point 2 Evolution of the Park : Why the Playground is the Heart”. James C. Gamble, Parks and Recreation Design issue of elevation, January, 2006 (the newsletter of the Illinois chapter of the American Society of Landscape Architects). 6 of interest” in the City and in Greenwich Village. NYC-Parks lists (in its official web-site) Adrienne’s Playground as Park M-395. NYC-Parks (on the same website) lists Mercer Playground as Park M-295. This is a direct recognition of their official status as “parkland”. LaGuardia Corner Gardens is also registered with NYC-Parks on its official website as a “Community Gardens” under the City’s “Green Thumb Program”. Friends of LaGuardia stands as the caretaker of LaGuardia Park dedicated to its continued existence as public parkland that is now threatened by NYU’s Plan 2031 (the “Sexton Plan”) which would abolish City parkland without approval by the NYS Legislature. The lower court found that there was an implied dedication of this parkland and other parcels in the immediate area, Mercer Playground and LaGuardia Corner Gardens, as “parkland”. The Appellate Division apparently overlooked the history and facts about LaGuardia Park, casting LaGuardia Park (and the other parcels) as something other than the result of “implied dedication as parkland” and of only temporary status that can be changed at any time. Friends of LaGuardia (for its members and as the guardian of LaGuardia Park) has a significant interest in informing the Court of the “history” of LaGuardia Park as it achieved “implied dedication” by the City and as the Park has been maintained as a park by the City – directly and indirectly. 7 At no time has the “management” of LaGuardia Park been “temporary” on the part of NYC-Parks. Friends of LaGuardia and the Joining Briefing Organizations can “speak” to this last point from personal experience and to inform the Court (as a “friend of the Court”) on this appeal. 8 PRELIMINARY STATEMENT. It is hard to express in words the love and affection the residents and children of Greenwich Village have for LaGuardia Park, the statue of Fiorello LaGuardia and Adrienne’s Garden, along with the other open park space and playgrounds including Mercer Playground, LaGuardia Corner Gardens and Mercer-Houston Dog Run (and the former Reflecting Garden and Children’s Playground on additional portions of the same land), all of which are situated on the full City blocks along LaGuardia Place and Mercer Street between Houston and West Third Streets. LaGuardia Park is our space where neighbors stroll, children play and residents hold public meetings and events. Events include (without limitation) the Geodesic Dome (Fly’s Eye) and the Sonic Forest. LaGuardia Park is a parkland as envisioned by the neighborhood and community and as recognized as a park by NYC-Parks. Adrienne’s Playground is registered by NYC-Parks as Park M-395; Mercer Playground is Park M-295. LaGuardia Corner Gardens is also registered with NYC-Parks as a “Community Garden” in the City’s “Green Thumb Program” (A:6:2055) with a NYC-Parks plaque (A:8:3097). 9 Parks and playgrounds are accepted and acknowledged by the City and NYC-Parks on NYC-Parks’ “official website”3 as essential to the health and welfare of the City. Dedication of parkland is directly associated with the provision and preservation of promoting the health and welfare of all. We ask the Court’s permission to quote the very words of NYC-Parks from the “official website” that have a direct and persuasive meaning on this appeal. “Despite significant changes over more than a century in the equipment and appearance of New York City’s playgrounds, as their designs have evolved one thing has remained constant – the essential role that the playgrounds play in the vitality of urban neighborhoods, and in particular the physical development and socialization of the city’s children. * * * [A playground] “is also a critical part of a child’s emotional education…” * * * “As New York City rebuilds its recreation facilities, playground designs continue to evolve in response to maintenance experience and community needs.” The parks whose existence stand threatened today are registered as official NYC parks and playgrounds. LaGuardia Corner Gardens is a registered “community gardens” where the City and NYC-Parks recognize that “community 3 “Playgrounds in Parks” is a feature of NYC-Parks found at www.nycgovparks.org/about/history/playgrounds. 10 gardens” are part of City parks (of whatever size) (from the NYC-Parks official website, “Playgrounds in Parks” under “Playground Innovation”). It is a local “custom” for parents to teach their children how to ride a bicycle in Mercer Playground. LaGuardia Park and Adrienne’s Playground is a unique setting for people of all ages. LaGuardia Corner Gardens offers local residents the opportunity to plant and tend to their own “garden”. The Mercer-Houston Dog Run (administered by the community’s Mercer-Houston Dog Run Association) provides a safe location for residents to exercise their dogs where those animals are apartment “residents” too. The Appendix references the designation of Mercer Playground which was created by the NYC- Parks Department (A:8:3081). Friends of LaGuardia respectfully submits that the Amici parties can offer a first-hand perspective for the “why” and the “how” LaGuardia Park came into “being” as a loved and treasured impliedly dedicated public parkland and how LaGuardia Park is much more than transient as “parkland” and is a “public park” in every sense of the phrase. LaGuardia Park is used and needed by the community and its residents - adults, seniors and especially children. And of equal importance is that at all relevant times, the NYC-Parks has been a “partner” with Friends of LaGuardia in the maintenance of LaGuardia Park and not on a “temporary” basis. There is a history 11 of a long term and close relationship since NYC-Parks has always treated LaGuardia Park as one of its own. 12 LEGAL ARGUMENTS. POINT I. THE HISTORY OF NYC-PARKS AND LaGUARDIA PARK AND THE OTHER PARKS DEVELOPING THE PARKS AS CITY PARKS. There is a history of a long term and close relationship since NYC-Parks has always treated LaGuardia Park (and the other three parks) as its own. For LaGuardia Park, this “private-public partnership” in managing LaGuardia Park began with the development of the vacant land (on the mapped but never widened portion of LaGuardia Place) – first with the assistance of the City’s Department of Transportation (“NYC-DOT”) and then with the full cooperation of NYC-Parks. The Record has references to this “partnership”. Former City Councilman Alan J. Gerson in his affidavit (A-8:3101-3106) attests to this as a “collaboration” where these City Agencies “partnered” with the private sector to “preserve these spaces for park purposes”. (A-8:3102 at Paragraph 8.) Mr. Gerson also attests that the NYC City Council allocated discretionary funds in excess of $100,000 to Friends of LaGuardia for the Park (Appendix A-8:3103 at Paragraphs 9 and following.) 13 NYC-Parks has, from the inception of LaGuardia Park (in the 1980’s), provided Friends of LaGuardia with funds for the development of LaGuardia Park included with the monies raised privately by Friends of LaGuardia for that very purpose. Additionally, Friends of LaGuardia has worked with the “Partnership for Parks” which is a collaborative effort by NYC-Parks and the City Parks Foundation (a not-for-profit corporation). The Partnership for Parks “helps NYC residents support neighborhood parks” (from the City Parks Foundation 2002 federal tax Form 990 under “Statement of Program Accomplishments”). In that same Form 990, the City Parks Foundation as its “Statement of Organization’s Primary Exempt Purpose” stated, “The City Parks Foundation builds communities by revitalizing parks. * * * City Parks Foundation seeks * * * to connect neighborhoods to their parks.” And in that “Statement”, City Parks Foundation commits to providing monies as a “fiscal sponsor” to the NYC-Parks to support its “programming” of City Parks. Friends of LaGuardia has both received grants from the City Parks Foundation and has made contributions to the Foundation in cooperation with NYC-Parks, especially in instances where NYC-Parks provide extraordinary services to LaGuardia Park (such as when NYC-Parks removed graffiti painted on the LaGuardia Statue). Clearly, NYC-Parks envisions participation in the NYC-Parks / City Park Foundation’s Partnership for Parks program as a means to sponsor neighborhood involvement with their local parks. 14 Friends of LaGuardia participated with NYC-Parks for many, many years now to further the development and custodianship of LaGuardia Park. The “story” of LaGuardia Park and, from the perspective of Friends of LaGuardia, the imminent demise of LaGuardia Park, is illustrative of the sensitivities for the other parks on parkland as expressed by the Joining Briefing Organizations. With the Court’s permission (to allow the Court to take “judicial notice” as warranted), Friends of LaGuardia has attached “Exhibits” to this Brief at its “end section”. This Court has recognized a narrow exception to the rule that the documents not submitted to the court of original instance cannot be considered on appeal. In Crawford v. Merrill Lynch, Pierce, Fenner & Smith, 35 N.Y.2d 291 (298-299), 361 N.Y.S.2d 140 (1974), this Court held that on appeal, it can consider reliable documents whose existence and accuracy are not disputed, even if the purpose of the use of such documents is for the purposes of modifying or reversing an order under review. In the instance here, there can be no “dispute” as to the accuracy or reliability of any of the “exhibits” attached to this Brief (consisting of photographs taken of public events, correspondence from NYU and official agency correspondence). For the purposes of this appeal, FOL respectfully submits that these “exhibits” are very similar to the survey map (new to the “record”) allowed on appellate review that was “based on the descriptions of the contracts of sale of 15 both parcels” that were in the record already. See, Bravo v. Terstiege, 196 A.D.2d 473 (476), 601 N.Y.S.2d 129 (2nd Dept., 1993) (“Accordingly, we will consider the map on this appeal”). The “exhibits” serve to inform the Court as to different aspects of the “facts” already in the Record for the Court to reach the merits of the appeal. LaGuardia Park sits at the literal edge of the “superblocks” created (in the 1950’s) by the Robert Moses driven Washington Square Slum Clearance Plan (later the “Washington Square Southeast Urban Renewal or Redevelopment Plan”). In that Plan, three City blocks east of what is now LaGuardia Place (formerly part of West Broadway and even earlier, lower Fifth Avenue) were part of the Plan. Mr. Moses originally envisioned widening the roadbed of what is now LaGuardia Place as part of his “Lower Manhattan Expressway”. As the Plan progressed (with the original developer replaced by NYU), the roadbed of LaGuardia Place was never “widened”; instead, the unused portion of the roadbeds (from West Third Street south to Houston Street) were de facto vacant “strips” of land for two of the three “superblocks”4 that were not used for any of the original purposes that cried out for beautification as the original developer and then NYU built “Washington Square Village” and “Silver Towers”. 4 The three superblocks consisted of one “educational use” block, to the north – NYU’s Bobst Library and other academic buildings now – and two blocks to the south – the northernmost has Washington Square Village and the southernmost has Silver Towers (along with a much-later added NYU building at its edge). 16 By the early 1960’s, NYU conceded that it was not interested in developing these roadbed parcels (that were only “mapped” on paper5). Friends of LaGuardia has maintained copies of documents it assembled over the decades that include copies of NYU’s internal and external correspondence which establishes NYU’s complicity to and agreement with the “implied dedication” of LaGuardia Park as public parkland. Here are two examples. In a “Memorandum to Mr. Martin L. Beck” (NYU’s Directing of Planning and Supervising Architect and later Chancellor) from Daniel D. Robinson (NYU’s Vice-President for Business Management) dated March 20, 1964 [Exhibit A], discussing the “street widening proposal” for “West Broadway” (now, LaGuardia Place), he wrote (about keeping the street at its current width): “… there was thought given to the idea of leaving West Broadway at essentially its current width as far as the street is concerned. This would involve having the City take over title to the land it was supposed to acquire under the original redevelopment plan, with a commitment by the City that this land would be developed in a park-like manner. * * * I think it is very much to our advantage to accomplish something like this for several reasons. By not widening West Broadway the University will be less damaged by high-speed vehicular traffic adjacent to its property and if the City will add this strip to its park facilities, it would enhance the livability of the area while not placing the financial burden on the University.” [Emphasis supplied.] 5 For “informational purposes” only, in New York City, there are many “mapped streets” that have never been developed as “streets” and there are many streets in use that are “mapped” as larger streets but never widened. 17 NYU’s Beck sent his own “Memorandum to Chancellor Niles” dated August 25, 1964 [Exhibit B]. In his Memorandum (describing a Planning Commission Meeting with NYU and the City), Mr. Beck wrote about the nature of NYU’s request to the City for the “proposed treatment of West Broadway: “… the University is requesting that the present width between curb line be maintained utilizing the rest of the width [of the sidewalk area] for a Mall and Park combination on the east side of the street to be maintained by the City.” There was never a “doubt” of NYU’s “intentions” for the vacant land along the easterly side of West Broadway (LaGuardia Place): develop the land in a “park-like manner” into a “Mall” and park maintained by the City and not at NYU’s financial burden. That is precisely what happened – this park was developed on land “owned” by the NYC-DOT and “maintained” with the active assistance of the NYC-Parks into a “visiting” or “walking” garden6 with the notable additions of the life-size LaGuardia Statue (which NYC-Parks, on its website, characterizes it as a “dynamic sculpture” by the “well known sculptor Neil 6 A “viewing garden” features “views” of the plantings. A “walking garden” is one where the plantings are accessible to the visitors. LaGuardia Park has been developed as a walking garden including the children’s play park area – Adrienne’s Garden (recognized by NYC-Parks as “Adrienne’s Playground”). 18 Estern”) 7 and Adrienne’s Garden (listed on the website of NYC-Parks as “Adrienne’s Playground”), a unique children’s park. In the mid-1980’s, after years of non-attention to the vacant land, Friends of LaGuardia undertook fund-raising to allow it to develop the parcel along LaGuardia Place between Bleecker Street and West Third Street in the “visiting garden” park envisioned by it along with the LaGuardia Statue in the Park’s center. NYC-Parks supplied trees and shrubs for installation in the Park. The work done and coordinated by Friends of LaGuardia on the land is evident from contemporary photographs depicting the “before” and the “after” – the undeveloped parcel and as beautified by designed landscaping and plantings (Exhibit C). This represented the “first step” in developing LaGuardia Park as parkland for community and public use. The NYC-DOT (owner of the strip) acknowledged that the redeveloped LaGuardia Park was impliedly dedicated as parkland. In Commissioner Ross Sandler’s December 18, 1989 letter (Exhibit D), he wrote: “I, too, have passed by the partially completed LaGuardia Memorial Project and Park and can already see how much of an improvement the park will be. The Department of Transportation is proud to have played a constructive role in this important project.” 7 Estern’s LaGuardia statue is frequently described as portraying the late Mayor in his “man of action mode”, a very distinct pose and unique for the late Mayor. 19 The “constructive role” cited by the NYC-DOT Commissioner was effectively allowing the Friends of LaGuardia to create a park. No work could be done to improve the “strip” without the consent and encouragement of the City, including the NYC-DOT and NYC-Parks providing assistance for the Park. The creation of LaGuardia Park (and its ensuing use and enjoyment by the public) was as a direct consequence of the City’s implied (if not outright) agreement to dedicate the “strip” as parkland, even if there was no “formal” action taken to that effect and it was never intended for the dedication as parkland to be “temporary” . Like the City’s agencies, NYU also committed to contribute to the maintenance of LaGuardia Park. For example, in an early letter (August 31, 1989) from Richard M. Landman (NYU’s Vice-President for Administration) (Exhibit E) to the Friends of LaGuardia, he wrote: “…I’d like to put it on the record * * * NYU’s promise to make water available to the new park area.” “NYU does believe in the project and has been quite active in bringing it to fruition.” Not only is LaGuardia Park (and the other parks here) used by the community and its residents, NYU’s students and faculty have used, enjoyed and benefited from the park for many years. 20 Contemporary media references to the LaGuardia Statue referred to its location on “a grassy mall” on what was the “strip”8. Over the years, Friends of LaGuardia has orchestrated considerable efforts to beautify the park with plantings and installations of gardens. The plantings and design of LaGuardia Park is shown in the photograph (Exhibit F) with LaGuardia Place clearly shown as it has existed for decades without change. LaGuardia Place will never be redeveloped by widening its easterly street bed (something no one wants, including the City and NYU). When the LaGuardia Statue was “dedicated” (on October 19, 1994), many City luminaries were present and spoke. The design of the statue was approved by the City’s Art Commission. NYC-Parks (on its “official website”) noted the dedication and listed as the “donor” (of the statue), Friends of LaGuardia. The singular LaGuardia Statue was donated, as a gift, to the City to be placed under the management of NYC-Parks and to be placed within a Park. The 1994 dedication ceremony for the LaGuardia Statue is described in the lower court decision (A- 1:23) citing the presence at the dedication of NYU’s President and Mayor Giuliani and former Mayors Beame, Koch and Dinkins. NYU’s “NYU Today” (then a print media product) reported the dedication and the presence of all of these representatives of NYU and of NYC. The article (Exhibit G) spoke of the 8 Without enlarging the Exhibit Section of this brief, we note such media coverage using the description of LaGuardia Park as a “grassy mall”, appearing in the New York Times front page on October 8, 1987. 21 dedication at the “LaGuardia Gardens ceremony”. LaGuardia Gardens is synonymous with LaGuardia Park. With the dedication and installation of the LaGuardia Statue in LaGuardia Park, one month later, NYC-Parks placed its plaque (Exhibit H) at the site. Friends of LaGuardia did not end its work to improve LaGuardia Park with the installation of the LaGuardia Statue. In 2013, Adrienne’s Garden (a noted designed toddler’s playground) was dedicated within LaGuardia Park. On the website of the American Institute of Architecture (located across LaGuardia Place from LaGuardia Park), the “ribbon cutting” for Adrienne’s Garden was noted as, “dedicated, through the efforts of Friends of LaGuardia Place, as a new green space, LaGuardia Park [where] *** LaGuardia Park has been a special community resource, created and funded by the community and dedicated to community use.” [Exhibit I.] The American Institute of Architecture awarded Friends of LaGuardia a “Special Citation” for Adrienne’s Garden to “prepare [ing] the neighborhood to serve the next generation.”9 The ceremony to dedicate the LaGuardia Statue, and for Adrienne’s Garden (among many other “events” in LaGuardia Park) was conducted with the assistance of NYC-Parks , with representatives from NYC-Parks not only attending the events but also providing staff, event facilities and other cooperation. 9 As reported on the website for the American Institute of Architecture at www.aiany/aiany.org/index/php?section=press-release&prrid=286. 22 The Appendix contains a sterile portrayal of LaGuardia Park, Mercer Park and the other impliedly dedicated parks. In the photographs found at A:8:3316- 3323, the parks appear as sterile and stark city concrete environs and not as the warm, loved and consistently used and enjoyed “parklands” as they really are. The photographs offered with this Amicus Curiae Brief of the parks as actually used and enjoyed by the community and its residents represents a “true-to-life” portrayal of the parks for the education of the Court on this appeal. Offering a true representation of the parks in question is part of the perspective and interest of Friends of LaGuardia and the Joining Briefing Organizations. On many occasions, LaGuardia Park has been the location for “special events”. One such special event was the Geodesic Dome (the “Fly’s Eye Dome” shown as a temporary art installation in Exhibit J). Another was the “Sonic Forest” (shown as a temporary art installation in Exhibit J). Today, LaGuardia Park is used by thousands of visitors as part of the City Park system and an example of development of what little vacant land there is in Greenwich Village for parkland. Photographs of its public use for a toddler’s playground and as a viewing or walking garden is in Exhibit K. City Council Districts 1 (where LaGuardia Park and the other parks are located) and the immediately western City Council District 3 are among those areas with a lower percentage of parkland (and playgrounds) 23 than the rest of the City10 so that the existing parkland is a scarcer resource in a City of eight million. LaGuardia Park (and Mercer Playground, for example) are actively used by local community groups. Members of one such group, Bowery Babes (a not-for-profit with over 2,500 member families devoted to preserving the limited existing parkland in Greenwich Village) have to search far and wide for appropriate toddler and child appropriate playgrounds. Adrienne’s Playground is one such treasured park and playground that is available for children to use. These examples of the community’s attachment to LaGuardia Park and Mercer Playground is well founded in governmental sponsored studies and reports. Various health providers have studied the direct benefits of parks as “healthy places”. In one such study, Healthy Places : Exploring the Evidence (American Journal of Public Health, Vol. 93, No. 9, September, 2003)11, its author (Dr. Howard Frumkin) examined the positive health impacts for healthy places – physical, psychological, social, spiritual and aesthetic outcomes. Public health is directly related to urban design initiatives that have, at their centers, parks. People favor parks and parkland and see parks as part of an environment that is an important influence on their health and welfare. 10 Source, New Yorkers for Parks, 2009, Manhattan City Council Districts 1 and 3. The percentage of parkland in the First Council District is 6% - where in the rest of the City the percentage is 14%. That is a difference of 57.2% less. 11 Healthy Places : Exploring the Evidence is widely available, such as on www.ncbi.nim.gov/pubmed/12948962 - on the US National Library of Medicine at the National Institute of Health, a governmental web-site. 24 Similarly, Mercer Playground, LaGuardia Corner Gardens and the Mercer- Houston Dog Run are used and enjoyed by the community and its residents (and the children). Photographs of these “parks” are depicted in Exhibit L. Lastly, in instances of damage to the trees, plantings or benches or the rare instance of graffiti on the LaGuardia Statue in LaGuardia Park, NYC-Parks responds to assist in remediation and restoration of the Park. One instance was in May, 1994 when branches of apple trees in the Park were chopped down and the NYC-Parks assisted in preserving the trees. More recently, the Statue was vandalized and the NYC-Parks assisted Friends of LaGuardia with its cleaning and restoration. The private-public partnership between Friends of LaGuardia and NYC- Parks over the management and maintenance of LaGuardia Park has never been “temporary”. At no time has the NYC-DOT or the NYC-Parks ever expressed any reservation that the portion of LaGuardia Place’s roadbed that is LaGuardia Park is a “temporary park”; or that the active assistance in the partnership to manage and maintain LaGuardia Park is “temporary”; or that LaGuardia is anything other than a park in intention and in actuality. Indeed, Friends of LaGuardia has been part of the Partnership for Parks, a NYC-Parks program for public assistance to neighborhood parks and run by NYC-Parks for numerous City parks. The Partnership for Parks included LaGuardia Park because it is dedicated park space. 25 The 30 year (and growing) affectionate relationship between the Greenwich Village community and LaGuardia Park and its unique constituent focal points attests to the fact that LaGuardia Park is the result of its implied dedication as a public parkland and not as a temporary or incidental improvement. POINT II. LaGUARDIA PARK IS PUBLIC PARKLAND, DEDICATED AND CONTINUOUSLY USED AS A PARK. Regardless of its “location” in a “mapped” but never improved easterly portion of the roadbed of NYC Street “LaGuardia Place” between West Third Street running south to Bleecker Street, LaGuardia is an accepted and acknowledged park. The “acceptance” as a park is by the City’s NYC-Parks was manifested over the years (now some three decades) by its park designation and the installation of NYC-Parks “plaques” identifying LaGuardia Park and its constituent features as a park. The “acceptance” and “recognition” as a park by NYC-Parks is in addition to LaGuardia Park’s long and continuous use as an impliedly dedicated parkland. Every sector of the Greenwich Village community and its residents use, enjoy and treasure LaGuardia Park (and the other parks developed along LaGuardia Place and Mercer Street – LaGuardia Corner Gardens, the Mercer 26 Playground and the Mercer-Houston Dog Run). In the instance of LaGuardia Park, in its over 30 years of continuous use as a park, it has transitioned from its development in a walking park (from vacant and unused land along LaGuardia Place) into planted gardens, with the renowned LaGuardia Statue at its “center” and the recently dedicated Adrienne’s Garden (or Adrienne’s Playground), a toddler’s playground that is unique to the area and to the City as well because it was created using direct input from the very children for whom it was designed. LaGuardia Park is much more than a park in a city-scape; it is an example of how a community has embraced the revitalization of what is an unused portion of a never widened City street into a resource serving residents and visitors of every age. LaGuardia Park is used by thousands of visitors as part of the City Park system and an example of development of what little land there is in Greenwich Village for parkland. Photographs of its public use for a toddler’s playground and as a viewing or walking garden is in Exhibit K. Similarly, Mercer Playground, LaGuardia Corner Gardens and the Mercer-Houston Dog Run are used and enjoyed by the community and its residents (and the children). Photographs of these parks are depicted in Exhibit L. City Council Districts 1 (where LaGuardia Park and the other parks are located) and the immediately western City Council District 3 are among those 27 areas with a lower percentage of parkland (and playgrounds) than the rest of the City12 so that the existing parkland is a scarcer resource in a City of eight million. Through the grassroots efforts of Friends of LaGuardia (assisted by NYC- Parks), the undeveloped “strip” (the ground level portion of land “lying” in the “mapped” but never used easterly portion of LaGuardia Place roadbed between West Third Street and Bleecker Street13) was redeveloped and beautified into a walking and visiting gardens with plantings and walkways in a pre-designed plan. Even before LaGuardia Park was further improved with the installation of the Fiorello LaGuardia statue and recently with the installation of Adrienne’s Garden (also known as Adrienne’s Playground) for toddlers and young children, it was (and continues to be) greatly admired, loved and used by neighbors, the Greenwich Village Community and by visitors who are attracted to LaGuardia Park to see and enjoy the Statue and Adrienne’s Garden. In keeping with LaGuardia Park’s close relationship with NYC-Parks, at the suggestion of NYC-Parks, Friends of LaGuardia has participated in the Partnership 12 Source, New Yorkers for Parks, 2009, Manhattan City Council Districts 1 and 3. The percentage of parkland in the First Council District is 6% - where in the rest of the City the percentage is 14%. That is a difference of 57.2% less. 13 The “strip” (ie. the “mapped” but never developed easterly portion of LaGuardia Place) runs from West Third Street south to the northerly side of Houston Street. NYU “developed” what was the portion of the same “strip” from West Third Street north one block to Washington Square South with two educational buildings (Bobst Library on the easterly side and now Kimmel Center on the westerly side) without widening any part of LaGuardia Place or its roadbed. 28 for Parks (a collaborative effort by NYC-Parks and the City Parks Foundation, a not-for-profit corporation). In that participation, LaGuardia Park receives assistance (from the City Parks Foundation in yearly “grants” to improve and maintain LaGuardia Park specifically) and contributes other monies to City Parks Foundation at the times when NYC-Parks provides extraordinary services to LaGuardia Park14. Friends of LaGuardia respectfully submits that LaGuardia Park today is an “accepted” public parkland, having the trappings of a public parkland in recognition of its impliedly dedication as public parkland. LaGuardia Park has been dedicated as a public park with the installation of NYC-Parks “official plaques” : one for the installation of the LaGuardia Statue and a second for Adrienne’s Garden. And, LaGuardia Park continues to participate with NYC-Parks in its Partnership for Parks to advance the purpose to connect neighborhoods with their parks and to support and revitalize neighborhood parks. Bowery Babes is a not-for-profit organization of 2,500 membership “mothers support group”; CAAN 2031 is a coalition of 35 local community groups representing more than 10,000 families working to preserve LaGuardia Place and Mercer Street); 200 Mercer Street Apartment Corporation with 27 apartments and 14 An instance of such “extraordinary services” is when the LaGuardia Statue was painted with graffiti so that the Statue needed to be “cleaned” and returned to its bronzed appearance and that remedial work was done by NYC-Parks which has the expertise to address graffiti on City Park structures. 29 77 Bleecker Street Corp. with 242 apartments , represent the constituent resident owners who need, use and depend on the continued availability of these parks; the Parent-Teacher’s Association for PS 3 – The Charrett School, advocates for the educational and recreational needs of children; and Green Below 14, a 501(c)(3) non-profit organization registered in New York State is dedicated to improving parks, playgrounds and open spaces below 14th Street. This Court can and should take judicial notice of the fact that LaGuardia Park’s Adrienne’s Playground and Mercer Playground are recognized and acknowledged City parks because they are listed as registered City Parks on the NYC-Parks official web-site. LaGuardia Corner Gardens is also registered by NYC-Parks as a “community garden” where the phrase “community garden” appears on the “official website” of NYC-Parks to describe a sub-set of the types of parks (including “vest pocket parks” and the like). “Even material derived from official government Web sites may be the subject of judicial notice (citation omitted).” Kingsbrook Jewish Medical Center v. Allstate Insurance Company, 61 A.D.3d 13 (20), 871 N.Y.S.2d 680 (2nd Dept., 2009). Judicial notice should be taken of the “facts” that (a) LaGuardia Park’s Adrienne’s Playground and Mercer Playground are registered as “parks” by NYC-Parks on its official website; (b) LaGuardia Corner Gardens is registered as a “Community Garden” under the City’s “Green Thumb” program by NYC-Parks on its official website; and (c) 30 there are distinct and important personal health and quality of life benefits to city dwellers who have nearby access to any park or “parkland” according to the article/study published as Healthy Places : Exploring the Evidence (American Journal of Public Health, Vol. 93, No. 9, September, 2003) in a governmental publication on the governmental website for the National Institute of Mental Health . Friends of LaGuardia and the Joining Briefing Organizations urge the Court to accept the “fact” that the City is committed to the “fact” that for these two former LaGuardia Place “strips”, they have been fully transformed into official City “parks”. Not only has NYC-Parks itself noted the role played by parks and playgrounds with the “physical development and socialization of the city’s children” (from the NYC-Parks official website, “Playgrounds in Parks” mentioned above), but there are scores of scientific studies supporting the concept that “unstructured play helps build children’s social skills and confidence”15. Writers have concluded that “play and playfulness in a child’s early relationships is of crucial importance in the development of . . . a secure sense of self or self 15 From, James C. Gamble, Evolution of the Park: Why the Playground is the Heart” cited above. 31 esteem”. 16 Playgrounds today should be “greened” to “invite children to get moving in ways that nurture all aspects of their health and development.”17 Given the decisional authority to establish whether or not LaGuardia Park is “dedicated parkland”, the experience of Friends of LaGuardia (the Park’s private sector custodian) supports the conclusion that LaGuardia Park is a dedicated parkland. This Court, respectfully, should follow the legal and factual analysis found in Village of Croton-On-Hudson v. County of Westchester, 38 A.D.2d 979, 331 N.Y.S.2d 883 (2nd Dept., 1972), affirmed, 30 N.Y.2d 959, 335, N.Y.S.2d 825 (1972) even without a “formal dedication’ as a park (land for park purposes), there can be an implied dedication from “long continued use” – “dedication and acceptance by implication” (A.D.2d at 980). The park in that decision was used for “park purposes” for 45 years. Here, LaGuardia Park has been continuously used for “park purposes” for more than 30 years. Any difference in the measure of the “use” (in years) should not change the “result” of a finding of a dedication and acceptance by implication. Either period of time (45 years or 30 years) represents a considerable period of time for the period of use of the land for “park purposes”. 16 Biddy Youell, The importance of play and playfulness., European Journal of Psychotherapy and Counselling Vol. 10, No. 2 (2008) at Page 126. 17 J.E. Dyment and A.C. Bell, Grounds for movement: green school grounds as sites for promoting physical activity.” Health Education Research, Vol. 23, NO. 6 (2008) page 960. 32 LaGuardia Park was created from “scratch” by Friends of LaGuardia’s volunteers with the effort and actions by City Agencies – NYC-DOT and NYC Parks Department. The installation of the Statue in LaGuardia Park was “dedicated” on October 19, 1994 with the attendance of present and former City Mayors along with Agency representatives and civic groups (including Friends of LaGuardia). The toddler’s playground (Adrienne’s Garden), another improvement to LaGuardia Park was “dedicated” in 2013, again with the presence and active participation of City officials and Agency representatives. There is a “history” of years and decades of continuous use and enjoyment of LaGuardia Park (for example) as parkland. That history incorporates the community’s use and appreciation of these community parks and the City’s adoption of them as City Parks as well. Given the scarcity of parkland in Manhattan generally and this Council District (6% parkland versus 14% parkland citywide) and in Greenwich Village specifically and the continuous and regular use of these parks by the community and its residents (such as Bowery Babes), this Court should not lose sight of what these parks mean to the community and the consequences of the loss of these parks if the Decision of the Appellate Division is allowed to stand. 33 POINT III. APPELLANTS HAVE ACCEPTED THE FACT THAT LaGUARDIA PLACE WILL NOT BE “WIDENED”. THE LOSS OF THE PARKS THREATENS THE COMMUNITY AND ALL OF ITS RESIDENTS. The historical correspondence from NYU and the City’s DOT (Exhibits A, B and D), show that there is no realistic possibility that the roadbed of LaGuardia Place will ever be “widened”. The prospect or suggestion to widen LaGuardia Place had its genesis in Robert Moses’ slum clearance plan of the 1950’s and Moses’ plan for his Lower Manhattan Expressway. As the “parks” were created from the “strips” outside the “Superblocks” in unused roadbeds of mapped but never developed City streets over the past 30 years and more, in that “time” any thought of widening these streets became less and less of any reality. NYU cannot claim that it has any intention to ask the City to widen LaGuardia Place. The historical evidence demonstrates that NYU has recognized that its interest is in not widening the street. This is evident from Exhibit A and Exhibit B – the contemporary correspondence from NYU that recognizes (back to the 1960’s) that LaGuardia Place should never be widened and instead, along the border to the two “Superblocks” (the easterly side of LaGuardia Place), there should be parks. 34 Neither can NYC-Parks or NYC-DOT contend that LaGuardia Place or Mercer Street will ever be widened to remove the parks at issue (LaGuardia Park and LaGuardia Corners Gardens and Mercer Playground and the Mercer-Houston Dog Run). At every step in the creation of the parks, NYC-DOT and NYC-Parks were instrumental in their creation, in their maintenance and in their continue use by the neighborhood and community. LaGuardia Park and LaGuardia Corner Gardens are “registered” with NYC-Parks as official parks.18 Once “dedicated”, the “parkland” (LaGuardia Park and Mercer Playground and LaGuardia Corner Gardens) as “registered parks” should not be the subject of a reversion back to mapped but never used roadbed that is inconsistent with the actions of the City Agencies that were instrumental in the creation of LaGuardia Park in the first place and then its continued maintenance and preservation as public space. Once actually “accepted” by the City as a public park (registered on the NYC-Parks list of Manhattan Parks) with NYC-Parks plaques designating and identifying LaGuardia Park as a park, the conclusion that should not be cast aside under any application of decisional law considerations or by looking behind what the City agencies have done to see what these agencies “could do”. LaGuardia Place is a City street whose physical size and configuration will never be changed. 18 Mercer Playground was created by NYC-Parks and is also a registered pubic park. 35 The roadbed was “mapped” (for Robert Moses’ proposed Lower Manhattan Expressway) to be expanded; but it never was disturbed or changed from the configuration it had, as a City street, for decades and decades. NYU could have (and did not) enlarge the same roadbed (LaGuardia Place between West Third Street north one block to Washington Square South) when three educational buildings were constructed on opposite sides of LaGuardia Place19. LaGuardia Place is never being widened and the land in question will never been replaced with a widened LaGuardia Place because no one (especially NYU) wants additional vehicular traffic in the area to interfere with its students’ passage through what NYU assumes it is “campus” in Greenwich Village. This position has its genesis as far back as 1964 (mentioned in the letter of Daniel Robinson, Exhibit A). Friends of LaGuardia (for it members and for the greater Community) and the Joining Briefing Organizations ask the Court to recognize the extent of the deep love and affection they have for LaGuardia Park and all of its constituent features and how the Park is used every day for some public purpose, whether it be by children or by students or by adults. Parks are an integral part of the recognized need for city-dwellers to have easy and access to parks (see, for example, the 19 On the west side of LaGuardia Place, NYU first built Loeb Student Center and then replaced it with Kimmel Center / Skirball Center. Bobst Library is across the street. 36 analysis in Healthy Places : Exploring the Evidence (American Journal of Public Health, Vol. 93, No. 9, September, 2003)20, its author (Dr. Howard Frumkin). This study is only an example of the common sense recognition that providing access to parks for city dwellers is a priority. The Park is open to the public and should not be the victim of a redevelopment plan for the two “superblocks” where LaGuardia Park stands in the way of that plan without any showing that the Park can be cast aside when LaGuardia Park has been impliedly dedicated as public parkland, in continuous use and enjoyment as a park, and where LaGuardia Park has been actually accepted and acknowledged by NYC-Parks (and the City’s Mayor at the Statue’s dedication) as a park. The community cries out for the preservation of LaGuardia Park (and the other parks) having had and continuing to have the unfettered access to these “parks” facilitated by the City. The City has never expressed any “reservation” to widen the mapped but never developed roadbed area that was developed, instead, into treasured and continuously used parkland. 20 Healthy Places : Exploring the Evidence is widely available, such as on www.ncbi.nim.gov/pubmed/12948962 - on the US National Library of Medicine at the National Institute of Health, a governmental web-site. CONCLUSION. LaGUARDIA PARKAND THE OTHER RECOGNIZED PARKS AT ISSUE HERE ARE “PARKS” AND THEIR CONTINUOUS USE, ENJOYMENT AND ADOPTION BY THE COMMUNITY AND ITS RESIDENTS SHOULD NOT BE ENDED. THE DECISION OF THE APPELLATE DIVISION SHOULD BE REVERSED AND THE DECISION OF THE SUPREME COURT REINSTATED. Dated: April 20, 2015 Respectfully Submitted, //"2./' 7””?AWREN BGOLDBERG/Esq. Lawrence B. Goldberg P.C. Attorney for Friends ofLaGuardia Place, Inc. and the “Joining Briefing Organizations” as Amici Curiae 220 Fifth Avenue Thirteenth Floor New York, NY 10001 (212) 252-8300 37 Printing Specifications Statement (Certification); This brief was prepared using Times New Roman (l4pt) for the body. The word count” for the Brief is 7,300 words for the portions of this Brief. LIST OF EXHIBITS TO THE AMICI CURIAE BRIEF. Exhibit A NYU “Memorandum to Mr. Martin L. Beck” of March 20, 1964. Exhibit B NYU “Memorandum to Chancellor Niles” of August 25, 1964. Exhibit C Photographs showing area along LaGuardia Place in 1989 and then in circa 1990. Exhibit D NYC-DOT Commissioner’s letter of December 18, 1989. Exhibit E NYU letter to Al McGrath of August 31, 1989. Exhibit F Photograph of LaGuardia Park in 1993. Exhibit G October 20, 1994 article from NYU Today, Guiliani unveils statue of former Mayor LaGuardia. Exhibit H NYC-Parks’ November, 2001 Plaque for Fiorello La Guardia Statue, La Guardia Gardens. Exhibit I American Institute of Architects of NY, June 5, 2013 press release. Exhibit J Photographs of LaGuardia Park showing the Geodesic Dome event and the Sonic Garden event. Exhibit K From The Villager, June 13, 2013, “New children’s dragon playground is roaring good fun”. Exhibit L Photographs “Always parks, never streets”. is roaring good fun”. EXHIBIT A NEW YORK UNIVERSITY WASHINGTON SQUARE NEW YORK 3. N.Y. OFFICE o1= rue VICE PRESIDENT AREA CODE 212 SP 7-2000 FOR BUSINESS MANAGEMENT March 20, 1964 Memorandum to Mr. Martin L. Beck: The street widening proposal which has been prepared by Warner, Burns, Toan,g Lunde , which Dr. Schober sent me on March l3 raises some questions in my mind. ~ On the West Broadway_end of the block it shows a proposal for a 100 ft. street by New York University as compared with the existing 75 ft. street and the proposed 120 ft. street called for in the original redevelopment plan. NowTtHat"we own or are""' ' responsible for almost all of the West Broadway frontage from West 4th Street to West Houston Street, I think that entire area should p be treated in some integrated manner. I know that we are supposed ‘ to need 20 more feet of depth on the West Broadway end of our block for the library building. I wondergwhether this is still ~ true in view of the recent discussions with Chancellor Niles. Also, as you know, there was thought given to the idea of leaving West Broadway at essentially its current width as far as the street is concerned. This would involve having the City take over title to the land it was supposed to acquire under the original redevelopment plan, with a commitment by the City that this land would be developed in a park-like manner. This would bring the feeling of Washington Square Park all the way down West Broadway to West Houston Street. I think it is very much to our advantage to accomplish something like this for several reasons. By not widening West Broadway the University will be less damaged by high-speed vehicular traffic adjacent to its property and if the . City will add this strip to its park facilities, it would enhance the livability of the area while not placing the financial burden on the University. . As you know, we have a very serious problem in this regard in the southern block of this total area where the Mitchell-Lama building will be built. Unless we can resolve this in some manner like that which is mentioned above, the University might find itself having to maintain a strip of“Iand between the Mitchell- “ Kama site and the eastern boundary of West Broadway. \ I notice that on Mercer Street the architects show that the '\ existing street is 50 ft. wide and they then show "New York <5 University Proposal - 80 ft. street". This confuses me because ? ' _... -Q-__......_ g \ . ¢__. ~..~ - ---~ — -—--~ -- "_'_—"“'—"$' W. -P ‘F DlF"fiT“? 0F PLFWBHHF *~u . “L .at __ ' " ' ; ' ‘ FaLi'l Mr. Martin L. Beck March 20, 1964 ..2.. the original redevelopment plan and our agreement with the City was to widen Mercer Street to 80 ft. Since that time, various City officials had asked the University in planning Warren Weaver Hall to provide for a 90 ft. street. Thus, the entire t ,,~ building was moved westward by 10 ft. or was supposed to have ’;__ll been moved in this manner. If you will recall, this additional .¢k 10 ft. was the subject of some extensive discussions when Con ' Edison was putting in the new transformer vault necessary to our building. It would appear to me that the New York University proposal should have a 90 ft. street in order to be consistent with earlier planning. I notice that on West 3rd Street there are two arrows drawn, one of which shows the existing width of 70 ft. which is in accordance with the original redevelopment plan, and another arrow . which shows a wider width which is probably the 7§_ft. mentioned / in your letter to Dr. Schober of March 6. Before such further ,7 widening is approved, we might wish to take into consideration ’ the impact on the total position of the University, particularly - the effect, if any, on Washington Square Village which we now own and are responsible for. Inasmuch as it is our hope in the long __ run to gradually increase University occupancy of Washington Square ' Village as the existing tenants move out, we will have more and more,_ pedestrian traffic crossing West 3rd Street between the educational buildings and the housing facility. The traffic through this street is already very fast and street widening would make it even more dangerous. ‘THe"fi€€d for this may be mitigated in part by the new thinking which the Chancellor has brought on the entire question of new construction of the education block. This in essence raises serious questions about developing the greatest bulk possible on any given site. I strongly urge that full consideration be given to all of these problems before we commit ourselves to anything with the City. ,--_ \\4 _, , 9.. . .5" - >.::- i EXHIBIT D ,_455. ¢+:§‘i_.“‘.»‘_ *1-.1”.\‘P-is -:m ’-:5?I‘J 4 “Vll .4“- savers?‘ _fl_fi.<~ is i was VF 03 :-§.§- “I 0 NEW YORK CITY DEPARTMENT OF TRANSPORTATION ' OFFICE OF THE COMMISSIONER ""- I 40 Worth Street New York, N.Y. 10013 212-see-8385 Ross Sandler Commissioner December 18, 1989 Hr. A1 HcGrath, President Friends of LaGuardia Place 496 LaGuardia Place, #260 New York, NY 10012 Dear Al: Thank you for your wonderful letter of December 12th, complimenting the work of David Gurin, Ruth Shapira and David Valenstein. I, too, have passed by the partially completed LaGuardia Memorial Project and Park and can already see how much of an improvement the park will be. The Department of Transportation is proud to have played a constructive role in this important project. I look forward to the grand opening. with best regards. I 1 Since ely yours, ROSS SANDLER Commissioner RS:pbf l792A/6 cc: D. Gutin, R. Shapira, D. Valenstein EXHIBIT E NE_W YORK UNIVERSITY A private umverszty U1 the public S€I'V!C€ Office of the Vice President for Administration Elmer Holmes Bobst Library 70 Washington Square South New York, N.Y. 10012 Telephone: (2l2) 998-2366 August 31, 1989 Mr. Al McGrath Friends of LaGuardia 496 LaGuardia Place #260 New York, N.Y. 10012 Dear Mr. McGrath: I know we already discussed this matter, but I'd like to put it on the record. It appears that the Villager has been printing the wrong information concerning NYU’s promise to make water available to the new park area. We did have our plumbers make the proper connections available from our store's water supply, but we never promised an "irrigation and sprinkler system". NYU does believe in the project and has been quite active in bringing it to fruition. To date we have completed the following: O‘lr-$>~OJl.\'Jl'--* Painted storefronts. Replaced signage and awnings on the stores. Seeking cafe as tenant for vacant store. Install higher fences to make walk safer. Ordered and will install new lights on awnings this week and will also install high intensity lights above the cornice. 6. Trimmed the NYU trees and shrubs in park area. 7. Prepared necessary plumbing connections for water availability. 8. Called Parks Department numerous times to have them remove the dead trees. Wrote to Henry Stern to try to remove the third. We have also requested that the City trim its trees that front on the street. 9. Purchased and installed a flag entitled "LaGuardia Plaza". 10. Gave chairs and tables for the Ground Breaking ceremony. _2_ I look forward to seeing the next phase of construction begin, and hope that the City will coordinate the project with us, so that the water connections can be made. In addition, I still want to be on the record of requesting that the orientation of the paths be placed in a manner that conforms (on the diagonal) with the pedestrian flow. We hope to select the tenant next week. I will call you with the details. Sincerely, 3 C "'-‘F Richard . Landman cc: R. Goldfeld J. O'Connor R. Cohen EXHIBIT F This 1993 bird's-eye view of LaGuardia Place, looking towards Bleecker Street, shows the curving paths the architect designed to allow people easy access to the stores fronting the inside sidewalk. The statue of Mayor LaGuardia now stands in the re~tangular pl ot shown here in the central plaza. EXHIBIT G NYU TODAY . , ‘ . Thursday. October 20, ‘I994 ' THE WASHINGTON SQUARE NEWS ' Giuliani unveils I statue of former Mayor LaGuardia Mark Mal szko Assignment Editor Mayor Rudolph Giuliani unveiled a statue of Fiorello H. LaGuardia in a dedication ceremony honoring the former New York City mayor yester- day on LaGuardia Place. City officials, in- cludingformerNew York City mayors and members of Friends LaGuardia Place, honored LaGuardia in the LaGuardia Gardens ceremony. The city’s 99th mayor, LaGuardia was in office from 1934 to 1945. Friends Presi- ' dent Al McGrath and Vice President Charles Rodstrom wel- _ comed those who attended and intro- duced speakers. Friends was started" ‘ I-S --1-<......,-. . stock market crash and World War II. “He made this a city that believed in itself,” Giuliani said. “He was actu- ally building this city for a better fu- ture.” The statue was designed by sculp- torNeil Estem. Friends commissioned Estern to execute a larger-than-life bronze statue of LaGuardia, mod- eled after one he had designed ear- lier. A tablet in front of the statue s u m m a r i z e s LaGuardia‘s con- tributions. Dr. Katherine LaGuardia, the former may0r’s granddaughter and honorary chairper- son ofFriends, said “this day has been dreamed of for _ many years.” Speaking onbe- halfofNYU, Presi- dent L. Jay Oliva welcomed theii as a nonprofit orga- i _ ~ . _ _ 7'" ‘3[°9°'Y/ W9" statue to the neigh- nization in 1986 by Gmham h°“°1’"‘|8 31¢ Fl°"°“° H‘ borhood, saying neighborhood resi- I-‘G“"ffi" ‘tame’ *°n_b°hin‘l ‘he that having a statue dents andbusinesses maY°l‘~mfl1e I-'G“"'d'3G"d°m' of one of New to improve the run- . down tract of land, which is now LaGuardia Gardens. “Thisjs a very important occasion for the city because Fiorello H. LaGuardia represents something very special,” Giuliani said. “He gave the city hope and hope based on a realistic basis.” ' Giuliani said LaGuardia brought the city through two very difficult pe- riods in American history: the 1929 York’sbest mayors matches the “global nature” ofNYU’s commitment to work, study and ser- vice. “We are enormously grateful to Friends of LaGuardia Place,” Oliva said. Former Mayor David N. Dinkins remembered I.aGuardia, sayinghe was the most influential mayor the city has ever had and “one who gave people See STATUE, page 10 EXHIBIT H §:,_‘ ... __ r ‘ 4 3 . 1;-1 I V‘ " firm-zrn-ksrr 2001 J >— 2'. J’ 5 Q ‘A J1 ‘ FIORELLO LA GUARDXA smwn \- Lg Guardia Gardens ' _ Unwfiicd an 1994. this dyn§mic- scul;:curc of 511510: Fiomlio I-I, La Gmrrka (I332-I947) as by tbs: nzfa!-L'r;w'n s‘-cuipiur Ned Est:-m fb. I925}. Ln Guazdia, the sun of: United Sllliii 51%;} ham. cndcr. ‘ms bum on Dcccrznbczr H. 18$-2. at IT‘! Sulbwsz Surat in !-£a:1ha:t::.n's Ln‘-.3: H: n:~:::=‘--ad his iaw ckprz Trix?! N-:wYut|1 L!ni\¢!"&i:y, was minlitwi ‘bin the B-at in W10. am} h.w:a;1>: 121: naI§:m1'n_ fi.rs1§:11ian-.-\:n::r1fcw% Co§".,g:css:rm:1in 1935. Ln Cmmisz h-1%! vancrus Ctrmgrcssmtul posts 193-2, and sczvcd as pr:-sidcm uf New Turk Cizys Board of Aiicrmm fram l'§lI'.flt:J W11. 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Cummxiszarcf' § 'ww'w.:| jn: gun’-‘pfirifi ‘ F v ' .5 EXHIBIT I News June 5, 2013 Ribbon Cutting for Adrienne's Garden in Greenwich Village on June 6 at llam FOR IMMEDIATE RELEASE Press Contact: Daniel Fox, 212.3 58.61 14; dfox@aiany.org Ribbon Cutting for Adrienne's Garden in Greenwich Village on June 6 at llam Friends gfLaGuardia Place open new toddlers 'playground New York, NY, June 5, 2013 - Adrienne‘s Garden, a newly-created toddlers‘/playground located in LaGuardia Park in New York City's Greenwich Village, will open on Thursday, Jtme 6 at 11:00am. The ribbon-cutting ceremony, organized by Friends of LaGuardia Place, will celebrate a five-year effort to revitalize this public space. Friends ofLaGuardia Place will be joined at the opening by city officials, community partners, architects and landscape architects and some of the kids for whom it was designed and built. Press are invited to attend the ribbon-cutting festivities. LaGuardia Park is on the east side of LaGuardia Place, between Bleeeker and West 3rd Streets. Please rsvp to Dan Fox at 212.358.6114 or dfox@aiany.org. ABOUT LAGUARDIA PARK Just south ofWashington Square Park on the east side ofLaGuardia Place is a parcel of land once coveted by Robert Moses for "Fiflh Avenue South" - a project he conceived but, fortunately, never realized. The land, mapped as a public street, was dedicated, through the efforts of Friends ofLaGuardia Place, as a new green space, LaGuardia Park. It is the home ofa connnissioned statue ofMayor Fiorello LaGuardia, by renowned Brooklyn sculptor Neil Estem. For more than 20 years, LaGuardia Park has been a special community resource, created and funded by the community and dedicated to community use. It lines an entire city block, from West 3rd Street to Bleeeker Street along LaGuardia Place. Adrienne's Garden opens this week as a safe, fenced kid's enclave, featuring a fanciful dragon upon which kids can play and climb. DEVELOPING THE GARDEN Five years ago, Friends ofLaGuardia Place set out to freshen up the 20-year-old site with new ideas and new energy. Board members Adrienne Goldberg and Judy Magida turned to the New York Chapter of the American Institute of Architects, located across the street at the Center for Architecture. At the Center, school-age children participating in the Center for Architecture Foundation's summer camp program met in the garden and dreamed ofhow to design a place that was "more ftm." The kids sketched their imaginative ideas for all to see. DEVELOPING THE GARDEN _ _ Five years ago, Friends ofLaGuardia Place set out to freshen up the 20-year-old site with new ideas and new energy. Board members Adrienne Goldberg and Judy Magrda turned to the New York Chapter of the American Institute ofArchitects, located across the street at the Center for Architecture. At the Center, school-age children participating in the Center for Architecture Foundation's summer camp program met in the garden and dreamed ofhow to design a place that was "more fun." The kids sketched their imaginative ideas for all to see. That same summer, Adrienne Goldberg met Adrian Smith, a landscape architect and then president of the American Society of Landscape Architects New York Chapter, institutional partner at the Center for Architecture. Intrigued with the project, Adrian _ suggested that the park's redesign become part of a course he was teaching at Coltunbia University. His students generated additional concepts and renderings based on the children's sketches of their ideal playground. An overwhelming favorite emerged, based e on one child's depiction of a friendly dragon lolling in the garden. It was a perfect fit to sit alongside the statue ofFiorello LaGuardia, who, when Mayor, was known to have the courage to take on dragons. With Adrienne's sudden death in 2008, the project was momentarily put on hold. But the Friends of LaGuardia Place and the commtmity determined to continue the project as a memorial to her. The land is owned by the Department of Transportation, which _ suggested that the Parks Department jointly complete the work. The endeavor then met its third Adrian, the then Parks Commissioner Adrian Benepe, who welcomed it warmly. Friends of LaGuardia Place began a fund-raising effort, generating both public and private support. With monies in place, the project moved forward with AECOM as landscape architect and Horizon Design as designer of the dragon play piece. Over the last three years, Adrienne's Garden has received approvals and encouragement from Community Board #2, the Department of Parks, the Department ofTransportation and the Public Design Commission. With great excitement, the Friends of LaGuardia Place this week open Adrierme's Garden for use by the Greenwich Village community. "This is a very special time" said Lany Goldberg, President of Friends of LaGuardia Place. "Many generations of neighborhood children will play in this beautifully designed space." The garden project has also, this week, garnered a "Special Citation" from the AIA New York Chapter. The June 4 AIANY Annual Meeting award text describes the project as an extraordinary community resource. "We are glad that the Center for Architecture played an important role, in partnership with the community, to create a special place," said AIANY President Jill N. Lemer, FAIA. "Adrienne's Garden gives a new opportunity for kids to play and their parents and caregivers to appreciate superlative urban design, all on the street where we've lived for the last decade." ABOUT FRIENDS OF LAGUARDIA PLACE The transfonnation of a hardscrabble 50 foot by 440 foot long strip of roadbed, now a lush and lively park, is the singular achievement of one entity, Friends ofLaGuardia Place. Incorporated in 1986, Friends of LaGuardia Place - a volunteer organization - focused on creating a beautiful park centered on a statue of the legendary NYC Mayor who famously read the "funny papers" to children and brought the City out of the Great Depression by promoting public works and the jobs and civic enhancement they produce. Now, the kids are back in happy dialogue with "the Little Flower." EXHIBIT J 5I I 2 Examples of Art Installations and Events at LaGuardia Park. The Geodesic Dome (”Fly's Eye Dome”) and The ”Sonic Garden". _n| , =-.1 _ j§ -1;; _ ‘I, , j ; ‘_= __ ~—;~~-. .~‘7‘.t—'—' -‘ '_..- '1 if-‘i;':,‘. fit‘ _... _ . V ----_,-.. l—i"'T EXHIBIT K New chi1dren’s dragon playground is roaring good June 13, 2013 | Filed under: News I Posted by: The Villager Photos by Tequila Minsk] As U'r".i"~/s"?s"i"'.-/ Plaza preschoolers iooked on, stat-e Senator Brad I-Ioyiman gre etei his rlaughier she zipped down the d":zg3;". '97.-zry slide’; ‘tongue in Adriennes Garden. 1 T """“' " ‘ - U2 PT1. ‘:1, 8.5 EXHIBIT L Mercer Playground ...Sn0wma.n making AX _) - I/,1: ._._»~ ¢.|.~_, Cycling, scooting ...USA, POW/MIA, NYC Parks Dept ...Birthday celebrating NY City flag flying 3 ...Climbing, sliding, playing g _ _- V "-I17‘ -. _ Art installation interacting 5 ...Visiting, learning, honoring LaGuardia Park LaGuardia Pl. between Bleecker & W. 3"’ Sts. Mercer-Houston Mercer St. between Houston & Bleecker Sts. Exercising, socializing, calming Water Playground Mercer St. between Houston & Bleeeker Sts. . . .Climbing -iv Note: this Playground is currently closed due to NYU neglect; these two photos are from when this space — with its water feature, sandbox and climbing structure - was open and happily in use. The other pages in this document all show community volunteer-run parks; this is the only open space strip that was under NYU’s care; tending it was a condition of NYU’s receiving permission to build the Coles Sports Center, _,- V..--— seen in the background of the photo below. . . . Playing i . . .Growing LaGuardia Corner Garden T h g LaGuardia Pl. between Houston & Bleecker Sts. . . .Feeding