In the Matter of Senator Tony Avella, et al., Respondents,v.City of New York, et al., Respondents, Queens Development Group, LLC, et al., Appellants.BriefN.Y.April 25, 2017To be Argued by: CAITLIN HALLIGAN (Time Requested: 30 Minutes) APL 2015-00298 New York County Clerk’s Index No. 100161/14 Court of Appeals of the State of New York SENATOR TONY AVELLA, THE CITY CLUB OF NEW YORK, NEW YORK CITY PARK ADVOCATES, QUEENS CIVIC CONGRESS INC., BONO SAWDUST SUPPLY CO. INC., LEGACY WIRELESS INC., MORENA’S BOUTIQUE CORP., NEW YORK 128 REALTY CORP., SIJ INC., ST. JOHN ENTERPRISES INC., JOSEPH ARDIZZONE, ALFREDO CENTOLA, PAUL GRAZIANO, BENJAMIN M. HABER, MARTY KIRCHNER, NATALIA PERALTA and JOSE TORRES, Petitioners-Plaintiffs-Respondents, For a Judgment Pursuant to CPLR Art. 78 and General Municipal Law 51 and for a Declaration Pursuant to CPLR 3001, – against – (For Continuation of Caption See Inside Cover) REPLY BRIEF FOR RESPONDENTS- DEFENDANTS-APPELLANTS SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Times Square New York, New York 10036 Tel.: (212) 735-3000 Fax: (212) 735-2000 GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue New York, New York 10166 Tel.: (212) 351-3909 Fax: (212) 351-6209 Attorneys for Respondents-Defendants-Appellants Queens Development Group, LLC and Queens Ballpark Company, L.L.C. (For Continuation of Appearances See Inside Cover) Dated: October 28, 2016 CITY OF NEW YORK, BILL DE BLASIO, as Mayor of the City of New York, CITY COUNCIL OF THE CITY OF NEW YORK, NEW YORK CITY PLANNING COMMISSION, LIAM KAVANAGH, as Acting Commissioner, NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY, NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION and KYLE KIMBALL, as President of New York City Economic Development Corporation and Chair of the Board, NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY, Respondents-Defendants-Respondents, QUEENS DEVELOPMENT GROUP, LLC, RELATED WILLETS, LLC, STERLING WILLETS LLC and QUEENS BALLPARK COMPANY, L.L.C., Respondents-Defendants-Appellants. FOX ROTHSCHILD LLP Attorneys for Respondents-Defendants- Appellants Related Willets, LLC and Sterling Willets LLC 101 Park Avenue, Suite 1700 New York, New York 10178 Tel.: (212) 878-7991 Fax: (212) 692-0940 i TABLE OF CONTENTS PRELIMINARY STATEMENT ............................................................................... 1 STATEMENT OF FACTS ........................................................................................ 7 I. The Willets Point Development Project .......................................................... 7 II. The Process for Approving the Willets Point Development Project ............. 10 III. Proceedings Below ........................................................................................ 12 ARGUMENT ........................................................................................................... 14 I. THE STATUTE AUTHORIZES USE OF WILLETS WEST FOR ANY OF THE PURPOSES SET FORTH IN SECTION 18-118(B) ........... 16 A. The Plain Language of the Statute Authorizes Use of Willets West for Any Enumerated Purpose ..................................................... 16 B. The Structure of the Statute Supports Appellants’ Reading of Section 18-118 ..................................................................................... 25 II. THE WILLETS WEST DEVELOPMENT FALLS SQUARELY WITHIN SECTION 18-118(B)’S ENUMERATED PURPOSES ................ 28 III. THE ULURP AND ZONING ISSUES ARE NOT PROPERLY BEFORE THIS COURT ............................................................................... 30 CONCLUSION ........................................................................................................ 33 ii TABLE OF AUTHORITIES CASES 511 West 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144 (2002) .................................................................................... 31 Avella v. City of New York, 131 A.D.3d 77 (1st Dep’t 2015) .............................................................passim Avella v. City of New York, No. 100161/14, slip op. (Sup. Ct. N.Y. County Aug. 15, 2014) ................................................ 7, 13, 30 Bordeleau v. State of New York, 18 N.Y.3d 305 (2011) .................................................................................... 29 City of Rye v. Public Service Mutual Insurance Co., 34 N.Y.2d 470 (1974) .................................................................................... 31 Employers’ Liability Assurance Corp. v. Daley, 297 N.Y. 745 (1948) ...................................................................................... 12 Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623 (2001) ................................................................................ 2, 15 In re Hayes, 263 N.Y. 219 (1934) ...................................................................................... 12 Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997)....................................................................................... 15 Kato v. Ishihara, 360 F.3d 106 (2d Cir. 2004) .................................................................... 29, 30 Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95 (2001) ............................................................................ 4, 20, 26 iii Martin v. Waddell, 41 U.S. 367 (1842)......................................................................................... 16 Norton & Siegel Inc. v. Nolan, 276 N.Y. 392 (1938) ...................................................................................... 32 People ex rel. Swan v. Doxsee, 136 A.D. 400 (2d Dep’t 1910) ....................................................................... 15 People v. Illardo, 48 N.Y.2d 408 (1979) .................................................................................... 22 People v. New York & Staten Island Ferry Co., 68 N.Y. 71 (1877) .......................................................................................... 15 People v. Wragg, 26 N.Y.3d 403 (2015) .................................................................................... 25 QBE Insurance Corp. v. Jinx-Proof Inc., 22 N.Y.3d 1105 (2014) .................................................................................. 12 Rivers v. Sauter, 26 N.Y.2d 260 (1970) .................................................................................... 19 Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509 (1991) ................................................................................ 4, 26 Sun Co. v. City of Syracuse Industrial Development Agency, 209 A.D.2d 34 (4th Dep’t 1995).................................................................... 29 Zaldin v. Concord Hotel, 48 N.Y.2d 107 (1979) .................................................................................... 19 STATUTES AND RULES 1968 N.Y. Laws Ch. 252 ......................................................................................... 28 2005 N.Y. Laws 2923, ch. 238 § 2(a) ............................................................ 6, 24, 27 iv Admin. Code § 18-118 ......................................................................................passim Admin. Code § 18-118(a) .................................................................................passim Admin. Code § 18-118(b) .................................................................................passim Admin. Code § 18-118(b)(1) ............................................................................passim Admin. Code § 18-118(b)(2) ............................................................................passim Admin. Code § 18-118(c) .................................................................................. 10, 17 Admin. Code § 18-118(e) ........................................................................................ 19 Admin. Code § 18-128(a) .................................................................................... 6, 27 Admin. Code § 18-128(b) .................................................................................... 6, 27 OTHER AUTHORITIES Black’s Law Dictionary (4th ed. 1951) ................................................................... 23 Appellants Queens Development Group, LLC (“QDG”); Related Willets, LLC; Sterling Willets LLC and Queens Ballpark Company, L.L.C. (“QBC”) (collectively “Appellants”), through their undersigned attorneys, submit this Reply Memorandum of Law in further support of their appeal from the July 2, 2015 Decision and Order of the Appellate Division, First Department (the “Appellate Division”) reversing the August 15, 2014 Decision and Order of Supreme Court, New York County (Mendez, J.) (the “Supreme Court”) granting Appellants’ motion to dismiss the Amended Verified Petition and Complaint (the “Complaint”). PRELIMINARY STATEMENT In 2011, the City and QDG agreed on an ambitious plan to revitalize Willets Point in Queens and transform it from a 100-year-old waste repository into a thriving, mixed-use community that will be an integral part of surrounding Flushing and Queens. QDG will work hand-in-hand with the City to remediate the land in Willets Point to residential standards, develop a retail and entertainment center in Willets West1 and build a new neighborhood in Willets Point, including a school, amenities and new homes—35% of which will be affordable housing. This project will infuse over $3 billion of private investment into the area, create 1 Terms not defined herein have the meaning ascribed to them in Appellants’ Opening Brief (“QDG Br.”). 2 thousands of jobs, increase tax revenues to the City and the State, and convert a blighted area into a flourishing community. As Appellants established in their opening brief, and the City and State confirmed in their briefs, the Willets West component of the project – which will be built on an asphalt-paved parking lot adjacent to Citi Field – is authorized by existing state legislation, Admin. Code § 18-118, and thus complies with the public trust doctrine. Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623, 632 (2001) (citation omitted).2 That statute, which alienates certain tracts of parkland in Flushing Meadows and authorizes the City to enter into agreements allowing their use for various enumerated purposes, constitutes “direct and specific approval of the State Legislature, plainly conferred.” Id. Respondents’ nine-point list of objections to this plain reading of Section 18-118 can be boiled down to a few arguments. They claim that the statute is exceedingly narrow and merely authorizes construction of Shea Stadium. Relatedly, they contend that only the City, not its lessees or licensees, may perform construction on the designated land. To the extent Respondents acknowledge that the statute allows any use of the alienated parkland beyond construction, they 2 Notably, in Van Cortlandt Park, the Attorney General took the position that legislative approval was necessary before the parkland could be used for the City’s project. Van Cortlandt Park, 95 N.Y.2d at 628. Here, the AG supports Appellants’ claim that Admin. Code § 18-118 authorizes the Willets Point Development Project and that no further legislative authorization is necessary. (See generally State Brief.) 3 claim that Section 18-118 does not authorize any non-park uses of the land, and if it does, it allows only traditional, public activities of the sort that typically take place in stadiums, confined to the stadium and stadium-related facilities. Finally, they argue that in enacting Section 18-118(b)(1), the Legislature intended only to comply with the Gifts and Loans provision of the State Constitution, and suggest that the Court should therefore ignore the broad range of permissible purposes enumerated in that provision. Not only are these interpretations of Section 18-118 inconsistent on their own terms, but they are completely refuted by the plain language and structure of the statute. Section 18-118 delegates to the City express authority to enter into agreements with private parties to use the alienated parkland for any purpose enumerated in the statute. As Appellants have always recognized, the Legislature’s immediate objective in enacting the law was to ensure compliance with the public trust doctrine by authorizing construction of Shea Stadium. But the Legislature chose to craft that authorization in a specific manner: not only to allow use of parkland for construction of Shea Stadium, but to permit the City to enter into agreements that allow the use of the parkland “for any purpose or purposes which is of such a nature as to furnish to, or foster or promote among, or provide for the benefit of, the people of the city, recreation, entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of 4 trade and commerce . . . .” Admin. Code § 18-118(b)(1). Respondents ask this Court to ignore this broad language, quite literally rewriting the statute in an effort to defend their erroneous interpretation of the law. If the Legislature had intended to permit only construction of a stadium, or to allow that stadium to be used only for an exceedingly narrow range of purposes, it would have said so, much as it did in authorizing construction of the USTA Stadium and Yankee Stadium. It did not, and that disposes of the question before this Court. Respondents’ various interpretations of Section 18-118 fail on numerous counts. Subsection (a) indisputably authorizes the city to enter into leases and other agreements for any purpose enumerated in subsection (b), not just to construct a stadium. See Admin. Code § 18-118(a) (allowing leasing of the parkland “for any purpose or purposes referred to in subdivision b”). Indeed, the statute expressly authorizes the City to enter into “new, additional or further” leases “from time to time,” id., which would make no sense if the Legislature’s goal was only to authorize construction of Shea Stadium.3 Furthermore, contrary to Respondents’ reading, Section 18-118 does not provide that the City alone may undertake construction. In fact, the original lease between the City and 3 Respondents completely ignore this language, and their interpretation would render these parts of the statute superfluous, in violation of New York law. See QDG Br. at 29; see also Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 104 (2001) (statute should not be interpreted to render a term superfluous); Rocovich v. Consol. Edison Co., 78 N.Y.2d 509, 515 (1991) (same). 5 Metropolitan Baseball Club, Inc. that enabled construction of Shea Stadium set forth specific construction work to be completed by the lessee. (1961 Lease, Article XII, RA. 1113-16.) Respondents even go so far as to claim that the statute does not authorize the demolition of Shea Stadium and the construction of another stadium (Opp. at 33)—a position that is especially absurd given that Shea Stadium was torn down in the mid-2000s and replaced with Citi Field. Notably, it was Sterling, not the City, that completed that construction. Respondents offer several different—and conflicting—takes on the purposes for which the land at issue can be used, all of them contrary to the statute itself. Respondents claim that Section 18-118 does not permit the City to enter into leases for non-park uses. (Opp. at 2, 52, 53.) Of course, the very purpose of the statute was to alienate a tract of land in Flushing Meadows-Corona Park for non- park uses, including the immediate plan to build Shea Stadium. Respondents further argue that subsection (b)(1) was added only to ensure that construction of Shea Stadium would not run afoul of the Gifts and Loans Clause in the New York State Constitution, pointing to the alienation statutes for Yankee Stadium (the “Yankee Stadium Statute”) and USTA Stadium (the “USTA Statute”), which also include “purposes” provisions, as supporting this position. (Opp. at 5, 49-52.) One of the objectives of such “purposes” provisions surely is to comply with the Gifts and Loan Clause. But a comparison of the language in Section 18-118(b)(1) 6 with the USTA and Yankee Stadium Statutes makes clear that in setting forth permissible public purposes, the Legislature makes careful choices about what purposes to authorize. In the USTA and Yankee Stadium Statutes, the Legislature confined its authorization to a stadium and stadium-related purposes.4 In Section 118(b)(1), the Legislature made a very different choice: to allow use “for or any purpose or purposes which is of such a nature as to furnish to, or foster or promote among, or provide for the benefit of, the people of the city, recreation, entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce . . . .” Admin. Code § 18- 118(b)(1). This Court must give effect to that choice. Finally, in an effort to sidestep the legal question before the Court, Respondents lard their brief with numerous references to recent events that are not part of the record. Rather than engage in a similar exercise, Appellants note that the briefs filed by the City and the State in this case clearly lay out their views about the merits of the Project and the interpretation of the statute, both of which are fully consistent with Appellants’ positions. 4 See Admin. Code §18-128(a)-(b) (authorizing contracts or leases for use of U.S. Tennis Center stadium and grounds only with the USTA National Tennis Center Incorporated); 2005 N.Y. Laws 2923, ch. 238 § 2(a) (alienating parkland for construction of Yankee Stadium and allowing its use “for the purpose of developing, maintaining and operating thereon a professional baseball stadium and related facilities”). 7 Because the plain language of Section 18-118 specifically authorizes the development of Willets West as part of the overall Willets Point Development Project, and the project “will serve the public purpose of improving trade or commerce,” Avella v. City of New York, No. 100161/14, slip op. at 5 (Sup. Ct. N.Y. County Aug. 15, 2014) (Mendez, J.) (RA. 2118), this Court should reverse the decision of the Appellate Division and dismiss Respondents’ Complaint. In addition, the Court should decline Respondents’ invitation to decide ULURP and zoning issues that are not properly before the Court and that Respondents have waived their right to advance. Only after the Complaint is dismissed can Appellants finally begin the transformative development of Willets Point and Willets West. STATEMENT OF FACTS5 I. The Willets Point Development Project As detailed in Appellants’ Opening Brief, Willets Point is a 61-acre triangular plot of land adjacent to CitiField stadium that is occupied by vacant, substandard, underutilized structures riddled with building code violations. It lacks proper sanitation facilities, storm and sewage infrastructure, and adequate fire or 5 Appellants’ full statement of facts is set forth in their Opening Brief. (QDG Br. at 9-23.) Appellants fundamentally disagree with numerous characterizations set forth in Respondents’ Statement of Facts and reply here to Respondents’ most inaccurate and/or incomplete factual assertions. 8 safety protection. (QDG Br. at 9-11.) Respondents do not and cannot contest Appellants’ description of Willets Point. As the City and the State confirm, QDG’s Willets Point Plan was the only feasible way to implement the City’s decades-in-the-making 2008 Plan to redevelop Willets Point. (See QDG Br. at 16-20; City Br. at 13-16; State Br. at 13- 15.) The City’s vision for Willets Point is sweeping: it wants to remediate long- standing and egregious environmental contamination; install key infrastructure, including streets, sewers, and waste transport; fix recurring flooding conditions; build a new expressway interchange so the area is connected to transportation arteries; and construct much-needed residential housing. (QDG Br. at 15-16.) Obtaining financing for this ambitious project proved to be challenging. By bringing to the negotiating table its lease for land in Willets West, QDG was able to craft a feasible plan that would not require massive public subsidies, and it was the only developer to do so. (Id. at 19.) As both the City and QDG recognized, construction of a retail and entertainment center in Willets West would provide a catalyst for transforming public perception of the area, forge a path for viable commerce and employment in the area, and foster a stable economic environment that would attract future residents to the Willets Point area. (Id.; City Br. at 16.) 9 As explained in Appellants’ Opening Brief, in 2011, the City segmented the Willets Point Project into Phase 1 and Phase 2: Phase 1 focuses on remediation and development of a 23-acre tract of land in Willets Point, and Phase 2 focuses on development of the remainder of the 61 acres in that location. (QDG Br. at 16.) Phase 1 was further divided into two sub-phases. In Phase 1A, QDG will remediate the contaminated land in Willets Point to residential standards and develop a retail and entertainment center in Willets West to anchor the Willets Point community. While Respondents insist that this phase includes only construction of a “shopping mall,” (Opp. at 9), the record clearly shows otherwise. (See QDG Br. at 40-42; State Br. at 14; City Br. at 15.) In Phase 1B, QDG will build 2,490 housing units, approximately 35% of which will be affordable housing units—one of the most significant commitments to public housing in City history, and a school, along with all of the amenities needed for a thriving community.6 (QDG Br. at 20.) Respondents’ suggestion that QDG might cavalierly walk away from this commitment (Opp. at 15) is disingenuous at best. The penalties for doing so would amount to one of the largest liquidated damages clauses ever in the history of City/contractor development contracts, and would require QDG to 6 While Respondents complain that housing construction has been “postponed” (Opp. at 13), the environmental contamination afflicting Willets Point clearly has to be cleaned up before residences can be built on that land. 10 relinquish the opportunity to develop a large parcel of clean land – obviously a scarce commodity in New York City. (QDG Br. at 20 n. 14.) Respondents mischaracterize the nature of the Willets West site. (Opp. at 9-10.) Willets West is a 30-plus acre asphalt-paved parking lot immediately to the west of Citi Field, not a sprawling green space with swing sets and walking trails. It falls within the metes and bounds of the parkland that was specifically and directly alienated, and designated for non-park use by the State Legislature in the 1961 statute. (See QDG Br. at 13; compare Admin. Code § 18- 118(c) with FSEIS Executive Summary, A. 270-75; FSEIS Figures 1-1, 1-3a, 1-3b, A. 208-10.) Pursuant to that grant of authority, the City and the Metropolitan Baseball Club, Inc. entered into a lease in 1961 providing for the development of Shea Stadium. (1961 Lease § 3.1, RA. 1080-81.) Between 2006 and 2009, Citi Field was constructed in what was then a parking lot for Shea Stadium, and Shea Stadium was demolished. The development planned for Willets West will include retail shops, movie theaters, amusements, restaurants, public programming spaces, a rooftop farm/greenhouse and other commercial attractions. (QDG Br. at 40.) II. The Process for Approving the Willets Point Development Project After QDG and the City agreed on the parameters of the Willets Point Development Project, QDG secured a zoning text amendment, Special Permits, and a minor modification to the City Map to allow for the transitional uses that will 11 be necessary to complete Phase 1A. (QDG Br. at 21-23.) The relevant Community Board, City Planning Council, and City Council independently reviewed and approved these applications in a process marked by robust public participation. (Id. at 22-23.) Respondents’ characterization of this process is misleading. While Respondents claim that the City’s original RFP in 2008 did not encompass development on Willets West (Opp. at 11), the revisions made in the City’s 2011 RFP and Related and Sterling’s concomitant proposal were designed to address new hurdles posed by the post-2008 economic crunch and were fully embraced by the City. (City Br. at 13-14.) Despite Respondents’ insistence that the CPC and City Council took no account of Willets West in approving the project, (Opp. at 14-15), the record shows otherwise. Throughout the approval process, Respondents vocally opposed development of Willets West, raising many of the same arguments they are now making before this Court. (QDG Br. at 22-23.) And the CPC expressly acknowledged the planned development of Willets West in approving the requested zoning changes and special permits. (QDG Br. at 22; see also CPC Calendar No. 25 at 8-9, RA. 1569-70.) Not only did the CPC detail the planned use of Willets West – “expected to include over 200 retail stores, as well as a movie theater, restaurant and food court spaces, and entertainment venues” – it 12 even noted that this component of the project was “authorized under legislation.” (CPC Calendar No. 25 at 9, RA. 1570.) Respondents’ brief is replete with additional factual assertions referencing various documents, newspapers and other sources that post-date this appeal and are not in the record. Rather than rebutting them point by point, Appellants note that this extra-record material has been improperly injected and should be ignored by this Court. See QBE Ins. Corp. v. Jinx-Proof Inc., 22 N.Y.3d 1105, 1108 (2014); Emp’s’ Liab. Assurance Corp. v. Daley, 297 N.Y. 745, 747 (1948); In re Hayes, 263 N.Y. 219, 221 (1934). As for Respondents’ allegations regarding the City’s support for the project, not only are these assertions likewise dehors the record, but the City has made its position crystal clear in the brief it has filed with this Court seeking reversal of the Appellate Division’s decision. III. Proceedings Below Supreme Court correctly dismissed Respondents’ Complaint. Contrary to Respondents’ characterization, Justice Mendez did not “ignore[] the requirement of the public trust doctrine that any alienation of parkland be explicit and specific,” nor did the Court merely “tak[e] five words of the statute . . . out of context” to support its decision. (Opp. at 16.) Supreme Court acknowledged that “[t]he public trust doctrine requires legislative approval before a substantial intrusion or a lease is entered into, resulting in the use of parkland for non-park 13 purposes.” Avella, No. 100161/14, slip op. at 4 (RA. 2117) (citing Van Cortlandt Park, 95 N.Y.2d 623). While Respondents would have this Court believe that Supreme Court relied only on the inclusion of “improvement of trade or commerce” in subsection (b)(1) as grounds for its decision, that is simply not true. The Court laid out almost the entirety of sections (a) and (b) of the statute— including the references to the term “stadium” upon which Respondents rely so heavily—and explained that “[t]he legislative history of Administrative Code § 18- 118 . . . establishes that although the state legislature’s initial intent for the parkland was Shea Stadium, other uses were acceptable [f]or a public purpose.” Id. (RA. 2117-118.) Those public purposes, the Court observed, include the improvement of trade and commerce. Id. (RA. 2118.) The Court concluded that the statute “applies to the use of the property for a shopping mall, because it will serve the public purpose of improving trade or commerce” and the Willets West Plan “will also serve the public purpose of ultimately altering the blighted Willets Point into a mixed use community.” Id. Respondents also mischaracterize the Appellate Division’s decision. They assert that the court “found confirmation for [its] conclusion in the examples of permissible uses in § 18-118(b)(1)” (Opp. at 17), but the Appellate Division actually construed the illustrative language in subsection (b)(1) as “use limitations,” thereby reading the word “including” out of the statute entirely. See 14 Avella v. City of New York, 131 A.D.3d 77, 85 (1st Dep’t 2015) (RA. 2107-109). Notably, the Appellate Division did not reach any of the issues raised in Respondents’ Complaint regarding ULURP and zoning, leaving those portions of Supreme Court’s decisions untouched. See id. at 86-87 (RA. 2110-111) (“grant[ing the petition] to the extent of declaring that construction of Willets West on City parkland without the authorization of the state legislature violates the public trust doctrine.”). Respondents did not cross-appeal. ARGUMENT Throughout their brief, Respondents misconstrue the public trust doctrine and ignore the text and structure of Section 18-118. As a plain reading of the statute makes clear, when the Legislature alienated the parkland at issue here, it authorized the City to enter into leases and other agreements with third parties for a variety of enumerated purposes, each of which is expressly declared to be a public purpose. The development of a retail and entertainment center in Willets West will provide a place for recreation and entertainment and improve trade and commerce, as an integral part of the overall project to transform blighted Willets Point into a thriving new community. Accordingly, it fits squarely within the statute’s enumerated purposes. The mandate imposed by the public trust doctrine is straight-forward and well established: use of parkland “for other than park purposes . . . requires 15 the direct and specific approval of the State Legislature, plainly conferred.” Van Cortlandt Park, 95 N.Y.2d at 632 (quoting Ackerman v. Steisel, 104 A.D.2d 940, 941 (2d Dep’t 1984), aff’d 66 N.Y.2d 833 (1985)); see also QDG Br. at 26-27. Perhaps in tacit acknowledgement that a plain reading of Section 18-118 encompasses the Willets Point Development Plan, Respondents invite this Court to rewrite the public trust doctrine, suggesting that only the most discrete, detailed alienation by the Legislature will suffice. (See, e.g, Opp. at 22 (“in order to find a valid alienation, the Court must find that [the proposed interpretation] is the only meaning the Legislature could have intended”); id. at 25 (alienation must be “expressed with the utmost certainty”); id. at 27 (“if there is any ambiguity in a statute that supposedly alienates parkland, that statute must be read as not having done so”; the statute “must indeed identify ‘a very specific, discrete use’”).) That is not the law, and the cases that Respondents cite in support of these contentions—many of which are 100 years old—are inapposite.7 As the New 7 People v. New York & Staten Island Ferry Co., 68 N.Y. 71 (1877), addressed whether the Legislature had properly granted a private party the right to abridge the public right in navigable waters held by the sovereign state in trust for the public. It did not examine the construction of statutory authorizations alienating parkland, nor did it involve parkland at all. In People ex rel. Swan v. Doxsee, 136 A.D.400 (2d Dep’t 1910), aff’d, 198 N.Y. 605 (1910), the Court determined that use of a dock for purely private use violated a statute that authorized the municipality to run the dock only “for public use.” Consistent with the public trust doctrine principles at issue here, the Court noted that the Legislature had authority to permit municipalities to construct private structures on public wharves. Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997), dealt with the status of submerged lands underlying navigable waters, in the context of a dispute between the State of Idaho and (cont’d) 16 York Attorney General explains in its amicus brief, “[p]arkland statutes are interpreted like any other type of legislation.” (State Br. at 21.) In any event, as Respondents themselves concede, “the unambiguous plain language of Section 18- 118 makes resort to the interpretive rule of the public trust doctrine unnecessary.” (Opp. at 25.) That text, along with the structure of the statute, confirms that the Willets Point Development Project falls comfortably within the authorization set forth in the 1961 law, for all the reasons set forth in Appellants’ Opening Brief. This Court should therefore reverse the Appellate Division and dismiss the Complaint. I. THE STATUTE AUTHORIZES USE OF WILLETS WEST FOR ANY OF THE PURPOSES SET FORTH IN SECTION 18-118(B) A. The Plain Language of the Statute Authorizes Use of Willets West for Any Enumerated Purpose As Appellants explained in their Opening Brief, the text and structure of Section 18-118 confirm that the statute authorizes use of the alienated parkland in any manner that promotes the enumerated purposes set forth in subsection (b). (See QDG Br. at 30-40.) Respondents’ contrary interpretation—that it allows only construction of a stadium by the City (Opp. at 28-29), or that Section 18-118 ________________________ (cont’d from previous page) Indian tribes. Similarly afield, Martin v. Waddell, 41 U.S. 367 (1842), involved the interpretation of a land grant from the King of England to the Duke of York. 17 permits only construction and use of a stadium and related facilities (Opp. at 31- 34)—has no basis in the plain language of the statute itself, and this Court should reject it. 1. Subsection (a) Authorizes the City to Enter Into Agreements Allowing Any Person To Use Willets West For Any Enumerated Purpose The 1961 statute first sets forth the City’s authority to enter into contracts for use of the alienated parkland—the stadium, appurtenant grounds, parking areas, and other facilities—in subsection (a), and in subsection (b), which enumerates the purposes for which the property can be used. At the outset, it bears emphasis that Respondents wholly ignore a key aspect of the statute: Subsection (a) directs that third parties can use the alienated land “in, the whole or any part of a stadium, with appurtenant grounds, parking areas and other facilities, to be constructed by the city on certain tracts of land described in subdivision c.” Admin. Code § 18-118(a). There is no question that the Willets West development will be built on what is now an asphalt-paved “parking area” for Citi Field, indisputably within the metes and bounds of the land covered by 18-118(c). That alone establishes that the statute authorizes use of Willets West for any purpose enumerated in Section 18-118(b). Rather than grapple with this point, Respondents offer a series of inconsistent, convoluted interpretations of the statute. Respondents first contend 18 that subsection (a) authorizes only construction, by the City, of “a stadium, with appurtenant grounds, parking areas and other facilities.” (Opp. at 27-29.) While subsection (a) surely does authorize construction of a stadium (at the time, Shea Stadium), this provision also unquestionably gives the City much broader authority.8 Respondents try to defend their atextual reading by claiming that Section 18-118(a) focuses on what the City “may construct” (Opp. at 28), “defines specifically what may be constructed” (Opp. at 28), and provides only that “a stadium, with appurtenant grounds, parking areas, and other facilities [is] to be constructed by the city,” (Opp. at 32). But the statute itself precludes this reading. Section 18-118(a) authorizes the City “to enter into contracts, leases or rental agreements” with “any person” who wants to use the alienated parkland “for any 8 Subsection (a) provides, in relevant part, as follows: Notwithstanding any other provision of law, general, special or local, the city . . . is hereby authorized and empowered from time to time to enter into contracts, leases or rental agreements with, or grant licenses, permits, concessions or other authorizations to, any person or persons . . . for any purpose or purposes referred to in subdivision b of this section, to use, occupy or carry on activities in, the whole or any part of a stadium, with appurtenant grounds, parking areas and other facilities, to be constructed by the city on certain tracts of land described in subdivision c of this section, being a part of Flushing Meadow park and situated in the borough of Queens, city and state of New York, title to which tracts is now in the city. Admin. Code § 18-118(a) (emphasis added). 19 purpose or purposes referred to in subdivision b.” Admin. Code § 18-118(a) (emphasis added). That is exactly what the City has done here. Respondents argue that subsections (b)(2) and (e) support this reading of subsection (a), (Opp. at 32-33), but they do not. Subsection (b)(2) allows for use of “the stadium, grounds, parking areas, and other facilities . . . for any business or commercial purpose which aids in the financing of the construction and operation” of the stadium; it does not constrain use of that property pursuant to subsection (b)(1). Admin. Code § 18-118(b)(2) (emphasis added). Subsection (e) permits the City “to issue bonds . . . and make expenditures from the proceeds of such bonds” for the same purpose – financing and paying the cost of constructing a stadium, grounds, parking areas, and facilities, along with any improvements to such property. Nowhere does it limit the uses of the alienated parkland that subsection (b)(1) explicitly permits.9 Respondents offer an even narrower alternative reading of Section 18- 118(a) as allowing only for the one-time construction of Shea Stadium, (Opp. at 9 Respondents again resort to the bill jacket on this point, saying that the bill jacket “is even more specific than the statute itself with regard to what was to be built.” (Opp. at 33.) This is precisely what the law tells us we cannot do: look to the legislative history to vary the plain, unambiguous text of the statute. Zaldin v. Concord Hotel, 48 N.Y.2d 107, 113 (1979) (when text is “free from ambiguity and its sweep unburdened by qualification or exception,” court should have done “no more and no less than apply the language as it is written”); Rivers v. Sauter, 26 N.Y.2d 260, 264 (1970) (“By accepted canons of construction the generalities of the article heading must yield to the specifics of the section itself.”). 20 32-33), but that is equally wrong. The statute authorizes the City to “from time to time enter into amended, new, additional or further contracts, leases or rental agreements . . . for any purpose or purposes referred to in subdivision b.” Admin. Code § 18-118(a) (emphasis added). Respondents’ interpretation would read this language out of the statute entirely. See, e.g., Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 104 (2001) (statute should not be interpreted to render a term superfluous); see also QDG Br. at 46; State Br. at 25; City Br. at 30. Respondents further assert that subsection (a) designates “the City as builder and lessor of the stadium.” (Opp. at 29 (emphasis added).) In fact, the original lease between the City and Metropolitan Baseball Club, Inc.—which Section 18-118 was unquestionably designed to allow—sets forth specific construction work to be completed by the lessee. (1961 Lease, Article XII, RA. 1113-16.) Respondents’ contention that Appellants’ planned development is not authorized because the statute does not allow a lessee to “demolish [the stadium facilities] and construct something else” (Opp. at 33), is even more puzzling. That is precisely what happened when Shea Stadium was torn down and Citi Field was built pursuant to the authority conferred by this statute, without any additional legislative approval. And in any event, Appellants are not going to “demolish” 21 anything in Willets West. Rather, they are going to develop what is currently an asphalt-paved “parking area” into a retail and entertainment center. More generally, Respondents claim that the title of the statute, “Renting of stadium in Flushing Meadow park; exemption from down payment requirements,” supports their cramped interpretation of Section 18-118(a). Opp. at 31-32; see also Avella, 131 A.D.3d at 78 (RA. 2095).10 But as explained in Appellants’ Opening Brief, it is well settled that where, as here, the plain language of the statute is unambiguous, the Court should not resort to the title of the statute to construe the plain meaning. (QDG Br. at 44.) Respondents also claim that the canon of ejusdem generis precludes reading Section 18-118(a) to allow construction of “any structure that would serve any of the broad purposes listed in subsection (b)(1) of the statute.” (Opp. at 42.) Of course, that is exactly what the statute says on its face. Even if the statute were unclear, the ejusdem generis canon has no bearing here.11 It may be applied when a general term or phrase follows a list of specific terms, in order to prevent the 10 Although the Appellate Division did not analyze the title of the statute in any depth, it relied on “the overriding context” of the statute in reaching its decision. Avella, 131 A.D.3d at 84 (RA. 2106). 11 Moreover, as Appellants explained in their Opening Brief, there is no need to look to any canon of construction here because the plain language is unambiguous. (QDG Br. at 32-33 (citing United States v. Turkette, 452 U.S. 576, 581 (1981) (“The rule of ejusdem [sic] generis is no more than an aid to construction and comes into play only when there is some uncertainty as to the meaning of a particular clause in a statute.”)).) 22 broader, catch-all term or phrase from swallowing the more specific terms. That is the opposite of what the language in subsection (b)(1) does: subsection (b)(1) sets forth a broad list of authorized uses, and then gives an illustrative list of some specific uses that fit within the general list. (See QDG Br. at 33.) Relatedly, Respondents argue that the Legislature could not have meant to confer “the right to build structures that serve ‘a broad array of public purposes.’” (Opp. at 43.) Again, the statute says exactly that: the City may enter into agreements for use of the alienated parkland “for any purpose or purposes referred to in subdivision b.” See Admin. Code § 18-118(a).12 Finally, Respondents note that subsection (a) refers to “appurtenant” grounds. (Opp. at 42-43). Even if Respondents were correct that “appurtenant” modifies the words “grounds, parking areas and other facilities”—certainly not the most natural reading of that phrase—it does not constrain the purposes for which the parkland can be used; subsection (b) serves that function. In any event, the particular area that Respondents plan to use for development of the retail and 12 People v. Illardo, 48 N.Y.2d 408 (1979), upon which Respondents rely (Opp. at 42), dealt with a constitutional challenge to a criminal statute on vagueness grounds, a fundamentally different context than the one here. Applying ejusdem generis, the Court found that the phrase “other similar justification” that followed the words “scientific, educational, governmental” complied with the dictates of due process because it was sufficiently limited by the three words that preceded it. Id. at 416. There is no constitutional vagueness challenge here. Further, the reasoning from Illardo does not apply because the phrase “with appurtenant grounds, parking areas and other facilities” deals with three specific geographic spaces and does not provide for “other similar facilities.” 23 entertainment center on Willets West is unquestionably a parking area that is appurtenant to Citi Field. (Project Site Map, A. 267.)13 2. Subsection (b) Authorizes the Use of Willets West for a Broad Variety of Enumerated Purposes Respondents’ cramped reading of subsection (b) is no more defensible than their reading of subsection (a). Subsection (b) lays out the multiple public purposes for which the alienated parkland can be used, including “recreation, entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce.” Admin. Code § 18- 118(b)(1). Nowhere does the statute limit authorized uses only to those that “relate to the stadium itself and the naturally expected uses of a stadium.” Avella, 131 A.D.3d at 86 (RA. 2109). Respondents invoke the canon of noscitur a sociis, arguing that the examples of permissible purposes set forth in subsection (b)(1) limit the permitted 13 As described more fully in the City’s Brief, the retail and entertainment center in Willets West “will supplement the enjoyment of the stadium and elevate the area’s status as a destination. Recreation, entertainment, and commerce at Citi Field will be enhanced by activity at the adjacent mall and vice versa.” (City Br. at 33.) As of 1961, when the statute was drafted, Black’s Law Dictionary defined “appurtenant” to mean, among other things, “adjunct, appended or annexed to.” Black’s Law Dictionary 133 (4th ed. 1951). The retail and entertainment center will unquestionably be adjunct to Citi Field. See id. at 64 (defining “adjunct” to mean “something added to another”). Moreover, as the City points out in its brief, there has been a recent trend to create retail centers near stadiums in order to “provide avenues for commerce and recreation that complement stadium activity and serve as engines for broader economic development.” (City Br. at 32.) 24 uses of Willets West. (Opp. at 34-35, 40-41.)14 But these examples—all introduced by the word “including”—are illustrative, not limiting. Admin. Code § 18-118(b)(1) (emphasis added); see also QDG Br. at 34-36.15 Had the Legislature wanted to restrict the use of the parkland in Willets West to a stadium and stadium- related uses, it could have employed one of at least two separate approaches: The Legislature could have changed the word “including” in subsection (b)(1) to the words “limited to.” Or, the Legislature could have included the same type of language it included in both the Yankee Stadium Statute16 and the USTA Statute, which specifically limit the permissible uses and lessees of the parkland. But the Legislature chose instead to allow for a broader array of purposes, and this Court 14 The Appellate Division came to this same conclusion, misapplying a different canon— ejusdem generis. See Avella, 131 A.D.3d at 85-86 (RA. 2107-109); see also State Br. at 26- 27. Respondents attempt to justify the Appellate Division’s misapplication of the canon to subsection (b)(1) by claiming that the doctrine is “directly applicable,” and then applying it to a different section of the statute than did the Appellate Division. (Compare Opp. at 41-43 (applying the canon to the words “appurtenant” and “other facilities” in subsection (a)) with Avella , 131 A.D.3d at 85-86 (RA. 2107-109) (applying the canon to the illustrative language in (b)(1).) For the same reasons Respondents’ noscitur a sociis argument is incorrect, the Appellate Division’s ejusdem generis argument also fails. 15 Respondents disingenuously assert that the Appellate Division did not read this illustrative language as limiting, but rather found that the uses were “illustrative of the types of events that would be permitted.” (Opp. at 40.) That is flat out wrong: the Appellate Division described these examples as both “the use limitations laid out in subdivision (b)” and “specific examples provided by the limiting language.” Avella, 131 A.D.3d at 85-86 (RA. 2107-109) (emphasis added). 16 See, e.g., 2005 N.Y. Laws 2923, ch. 238 § 2(a) (limiting use of the parkland where Yankee Stadium was built “for development of a professional baseball stadium and to grant easements, licenses, permits, concessions and other authorizations. . . for the purpose of developing, maintaining and operating thereon a professional baseball stadium and related facilities” (emphasis added)). 25 should not revise the statute to accomplish a different result. See, e.g., People v. Wragg, 26 N.Y.3d 403, 405 (2015) (“[T]his Court is without authority to read mandatory language into a statute where it is otherwise absent.” (citing Lederer v. Wise Shoe Co., 276 N.Y. 459, 496 (1938)); see also QDG Br. at 38-40. The development of Willets West into a retail and entertainment center that will provide a place of recreation and improve trade and commerce fits comfortably within the permissible uses outlined in Section 18-118(b)(1). The Court should reject Respondents’ and the Appellate Division’s efforts to rewrite the statute to include limiting language that is absent from the text. Although the immediate purpose of the statute was to allow for construction of Shea Stadium, the plain language of subsection (b)(1) permits further development to promote the purposes enumerated therein, and this Court should so hold. B. The Structure of the Statute Supports Appellants’ Reading of Section 18-118 The structure of Section 18-118 confirms that subsection (a) authorizes use of alienated parkland by any person, for any of the purposes set forth in subsection (b)(1). Respondents’ and the Appellate Division’s reading would render an entire subsection of the statute superfluous. As explained above and in Appellants’ Opening Brief, (see QDG Br. at 36-37), subsection (b)(1) permits any use that creates, for the people of New York, “recreation, 26 entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce.” Admin. Code § 18- 118(b)(1). Subsection (b)(2) permits the use of the parkland for “any business or commercial purpose which aids in the financing of the construction and operation of such stadium, grounds, parking areas and facilities.” Id. § (b)(2). If, as Respondents and the Appellate Division suggest, the Legislature had intended to authorize only construction and use of Shea Stadium, or only uses “relate[d] to the stadium itself and the naturally expected uses of a stadium,” Avella, 131 A.D.3d at 86 (RA. 2109), subsection (b)(1) would be wholly unnecessary. This Court’s precedent instructs that such an interpretation must be avoided. See Leader, 97 N.Y.2d at 104; Rocovich, 78 N.Y.2d at 515. By the same token, if subsection (b)(1) were construed as Respondents and the Appellate Division would have it, as substantially limiting the City’s leasing authority to stadium-related uses, then subsection (b)(2) would be superfluous. While Respondents contend that Appellants’ reading of the statute would render both subsections (b)(1) and (b)(2) superfluous, (Opp. at 44), they are incorrect.17 Respondents claim that the purpose of subsection (b)(1) was to ensure 17 Respondents claim that subsection (b)(2) is at once broader and narrower than (b)(1). (Opp. at 44.) Subsection (b)(1) is unquestionably broader, allowing for any use that fits within the enumerated purposes. Subsection (b)(2) authorizes more limited commercial uses such as “concession stands” (Opp. at 44), which may not rise to the level of improving trade and (cont’d) 27 that the City’s leasing of the parkland would not run afoul of the Gifts and Loan Clause of the New York State Constitution, (Opp. at 44, 45-49),18 but this misses the mark. Appellants have never disputed that one of the Legislature’s goals in drafting Section 18-118 was to ensure that use of the parkland would comport with the Gifts and Loan Clause, but that provides no grounds for twisting the words of the statute into a narrow authorization that allows only construction (or use) of the stadium that would be built on the alienated parkland. Nor do the USTA or Yankee Stadium Statutes support such a tortured reading. (See Opp. at 47-48.) Clearly recognizing that the broad authorizing language included in Section 18-118 allowed for much more than construction and use of a stadium, the Legislature drafted the USTA and Yankee Stadium Statutes differently, to expressly limit the use of the parkland to stadium-related uses. See Admin. Code §18-128(a), (b) (allowing City to enter into contracts or leases only with the National Tennis Center to ensure that alienated parkland is only ever used as tennis stadium); 2005 N.Y. Laws 2923, ch. 238 § 2(a) (allowing City to enter into leases only “with the New York Yankees Limited Partnership . . . for ________________________ (cont’d from previous page) commerce for the benefit of the people of New York, but do aid in the financing of the stadium. 18 In support of this argument, Respondents again rely on the legislative history of Admin. Code § 18-118, despite multiple assertions that the text of the statute is unambiguous. As this Court is well aware, however, the text of a statute, and not the bill jacket, controls the inquiry into legislative intent. (See QDG Br. at 44-45.) 28 development of a professional baseball stadium and to grant easements, licenses, permits concessions and other authorizations. . . for the purpose of developing, maintaining and operating thereon a professional baseball stadium and related facilities”). The notable absence of such language from Section 18-118 confirms that the Legislature intended its reach to be much broader.19 II. THE WILLETS WEST DEVELOPMENT FALLS SQUARELY WITHIN SECTION 18-118(B)’S ENUMERATED PURPOSES Contrary to Respondents’ assertions, the planned development of Willets West fits squarely within the broad purposes that the Legislature set forth in Section 18-118(b)(1). (See State Br. at 23-24.) Willets West is expected to contain retail shops, movie theaters, amusements, restaurants, public programming spaces, a rooftop farm and other commercial attractions, all of which will promote the purposes set out in subsection (b)(1). The theaters and restaurants will provide entertainment, amusement and gathering places for patrons; the rooftop farm will provide a forum for education and enlightenment; the public programming spaces will provide places for meetings, education and community development; and the retail spaces will improve trade and commerce in the area. 19 The Erie County statute that Respondents cite (Opp. at 49-50), is not an alienation statute, does not involve parkland and thus is irrelevant to the question of whether Appellants’ proposed use of the parkland in Willets West comports with the public trust doctrine. See Erie County (1968 N.Y. Laws Ch. 252). 29 Respondents nonetheless insist that the planned retail and entertainment center will not serve a public purpose. (Opp. at 36-39.) Without citing any authority in support, Respondents claim that “‘improvement of trade and commerce’ is a term of art” that does not include “actually engaging in trade and commerce.” (Id. at 36.) That argument is nonsensical on its face.20 The planned retail and entertainment center will infuse approximately $3 billion of private investment into the local economy, generate tens of millions of dollars in new tax revenues, and create many new temporary and permanent jobs. (QDG Br. at 41- 42.) Bringing commercial vitality to this economically precarious location and creating an anchor for the remediation and development of Willets Point undoubtedly serves a public purpose by improving trade and commerce.21 (See State Br. at 28-29; QDG Br.at 40-41.) Respondents also point to Bordeleau v. State of New York, 18 N.Y.3d 305 (2011) and Kato v. Ishihara, 360 F.3d 106 (2d Cir. 2004), (Opp. at 36-37), but neither of those cases is remotely applicable here. Bordeleau involved the 20 Respondents’ argument also fails because it improperly treats language that is illustrative as limiting the meaning of “improvement of trade and commerce.” (See QDG Br. at 34-35.) 21 Respondents cite Sun Co. v. City of Syracuse Industrial Development Agency, 209 A.D.2d 34 (4th Dep’t 1995), for the proposition that under Gen. Mun. Law § 862(2), IDA may not fund a retail project unless it is located in a highly distressed area. (Opp. at 38.) That section of the General Municipal Law is irrelevant, as IDA is not funding the Willets West retail and entertainment center—QDG is. And in any event, it is a key component of a project to transform a highly-distressed, blighted area. 30 application of the New York State Constitution’s provisions on public grants to public benefit corporations, and Kato turned on the interpretation of “commercial activity” in the Foreign Sovereign Immunities Act. They are irrelevant in construing a statute that expressly enumerates a list of permissible uses and declares them all to be “public purposes.” Admin. Code §18-118(b). For all of these reasons, Supreme Court correctly found that the development of a retail and entertainment center on Willets West will contribute to the improvement of trade and commerce and therefore serves a public purpose. Avella, No. 100161/14, slip op. at 5 (RA. 2118). The Willets West component of the Plan is therefore authorized by Section 18-118 and fully comports with the public trust doctrine.22 III. THE ULURP AND ZONING ISSUES ARE NOT PROPERLY BEFORE THIS COURT Respondents devote over 10 pages of their brief to ULURP and zoning issues that are not before this Court and that Respondents have, in any 22 Respondents claim that if the Legislature had wanted to allow for development of a retail and entertainment center, it could have decreed that the land alienated in the statute was no longer parkland. (Opp. at 53.) Again, Respondents misconstrue what the public trust doctrine requires: there is no need for the Legislature to somehow “de-designate” parkland to allow non-park uses. All that is required is specific, explicit authority for those non-park uses. Admin. Code § 18-118 provides just that. 31 event, waived their right to raise.23 The only issue before this Court is whether the Willets West component of the Willets Point Development Plan is authorized by Section 18-118 and thus complies with the requirements of the public trust doctrine. (Motion for Leave to Appeal; Affirmation in Opposition to Motion for Leave to Appeal to the New York State Court of Appeals; Order of the New York State Court of Appeals granting motion for leave to appeal, RA. 2090.) The ULURP and zoning issues are beyond this Court’s review because Respondents did not seek leave to appeal the Appellate Division’s decision. (City Br. at 37.) It is well settled that an aggrieved party who does not appeal a judicial determination waives its right to raise those issues later. See, e.g. 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 151 n. 3 (2002) (issues were “beyond this Court’s review because plaintiffs failed to cross-move for leave to appeal. We will generally deny affirmative relief to a nonmoving party”); City of Rye v. Pub. Serv. Mut. Ins. Co., 34 N.Y.2d 470, 474 (1974) (“[T]he motion court and perhaps the Appellate Division, could have, but did not, grant summary judgment for defendants. Defendants, however, took no appeal from that determination. This court has no power to grant defendants, respondents on this appeal, affirmative relief.”) (citation omitted). 23 To the extent the Court is inclined to review the merits of these arguments, Appellants adopt the arguments set forth in City’s brief in full. 32 Respondents contend that they were not aggrieved by the Appellate Division’s decision and therefore could not appeal it, but they are incorrect. The Appellate Division did not accord them complete relief; it partially granted their petition but left undisturbed Supreme Court’s rulings as to the ULURP and zoning issues. See Avella, 131 A.D.3d at 86-87 (RA. 2110-111) (granting Respondents’ petition only “to the extent of declaring that construction of Willets West on City parkland without the authorization of the state legislature violates the public trust doctrine” (emphasis added)); see also Opp. at 18 (conceding same point). Where a party is not accorded complete relief, it is aggrieved and may appeal. See Norton & Siegel Inc. v. Nolan, 276 N.Y. 392, 394-95 (1938) (party that received two thirds of the sum it sought was not completely successful and had been aggrieved such that it could appeal). Because Respondents failed to do so, this Court should not consider the ULURP or zoning issues now. 33 CONCLUSION For all these reasons, the Appellate Division erred in construing Section 18-118, and in doing so misapplied the public trust doctrine. This Court should reverse the Appellate Division’s July 2, 2015 decision and dismiss the Complaint. Dated: New York, New York October 28, 2016 34 Respectfully submitted, ' SK~DEN, ARPS, SLATE, YlEAGHER & FLOM LLP FOUR TIMES SQUARE NEW YORK, NEW YORK 10036 TEL.: (212) 735-3000 FAX: (212) 735-2000 GIBSON, DUNN CRUTCHER 200 PARK A VENUE NEW YoRK, NY 10166 TEL.: (212) 351-3909 FAX: (212) 351-6209 Attorneys for Respondents-Defendants- Appellants Queens Development Group, LLC and Queens Ballpark Company, L.L.C. 35 KG1A m £r-- Fox ROTHSCHILD LLP 101 PARK AVENUE, SUITE 1700 NEW YORK, NY 10178 TEL.: (212) 878-7991 FAX: (212) 692-0940 Attorneys For Respondents- Defendants-Appellants Sterling Willets LLC and Related Willets, LLC