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SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

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In the Matter of an Article 78 Proceeding
LANDMARK WEST!,
Petitioner, Index No. 107387/2005

-against- VERIFIED PETITION

ROBERT B. TIERNEY, LAURIE BECKELMAN,

JEROME A. CHAZEN, HOLLY HOTCHNER,

and MUSEUM OF ARTS AND DESIGN,

Respondents,

_________________________________________

Petitioner, by its attorneys, Whitney North Seymour, Jr., and T. Gorman Reilly, as and for its Petition herein, respectfully alleges as follows:



PRELIMINARY STATEMENT

1. This is a proceeding under CPLR Article 78 seeking a judgment barring and prohibiting respondent ROBERT B. TIERNEY from participating in any way in proceedings relating to the possible landmark designation of 2 Columbus Circle, Manhattan, and awarding compensatory and punitive damages and other relief to Petitioner against TIERNEY and other named Respondents for conspiracy to obstruct and subvert the lawful functioning of the New York City Landmarks Preservation Commission and to deprive Petitioner, its members, and other citizens and taxpayers of their Constitutional right to petition the government for redress of grievances as guaranteed by the State and U.S. constitutions.




PARTIES


2. Petitioner, LANDMARK WEST! is a not-for-profit corporation organized under the laws of the State of New York whose members consist primarily of taxpayers of the City of New York. The offices of the corporation are located at 45 West 67th Street, in New York County, New York. Petitioner LANDMARK WEST! is a community group working to preserve the best of the architectural heritage of Manhattan’s Upper West Side’s from 59th to 110th Street between Central Park and Riverside Park. Since 1985, petitioner has worked to achieve landmark status for individual buildings and historic districts. Today, Landmark West! is the curator of the area’s 2,606 designated landmarks (up from only 337 in 1985).

3. Respondent ROBERT B. TIERNEY is Chair and the only salaried member of the City of New York Landmarks Preservation Commission, a New York City agency created pursuant to Chapter 3 of the New York Administrative Code. Established in 1965 to protect the City’s architectural and historic resources, the Commission identifies, designates, and regulates buildings, districts, sites, and interiors considered significant for their architectural, historic, cultural, or aesthetic qualities. The Commission consists of eleven members appointed by the Mayor, ten unsalaried. The membership must include at least three architects, a historian qualified in the field, a city planner or landscape architect, a realtor, and at least one resident of each of the five boroughs. The Chair and Vice Chair are designated by the Mayor. The purpose for which the agency was established is set forth in Section 25-301 of the Administrative Code, a copy of which is annexed as Exhibit “a.”

4. Respondent LAURIE BECKELMAN is former Chair of the City of New York Landmarks Preservation Commission and is currently employed as Director of New Building Program of the Museum of Arts and Design, 40 West 53rd Street, New York, NY 10019.

5. Respondents JEROME A. CHAZEN and HOLLY HOTCHNER are and were at all relevant times executives and members of the Board of Governors of Respondent MUSEUM OF ARTS & DESIGN (hereinafter sometimes referred to together as the “Museum Respondents”) and, as such, were fully familiar and chargeable with the facts, circumstances and events set forth below.



THE FACTS

6. Over the course of several years, numerous groups and individuals have petitioned the Landmarks Preservation Commission to consider the landmark designation of 2 Columbus Circle in Manhattan, designed by noted architect Edward Durrell Stone, for Landmark status, including



Organizations:

 

Clinton Special District



Coalition for a Livable West Side

Committee for Environmentally Sound Development

DOCOMOMO New York/Tri-State Chapter

DOCOMOMO US

The Fine Arts Federation of New York*

Friends of Cast Iron Architecture

Historic Districts Council

Landmark West!

Modern Architecture Working Group

The Municipal Art Society

The National Trust for Historic Preservation

New York Landmarks Conservancy

Preservation League of New York State

Queens Historical Society

Women's City Club

 

 



Individuals:

 

Barry Bergdoll (Chair, Columbia University Department of Art History and Archaeology)



Michele H. Bogart (former Vice President, Art Commission of the City of New York)

Gale A. Brewer (New York City Council Member)

J. Carter Brown (former Director, National Gallery of Art and the United States Commission of Fine Arts)

Giorgio Cavaglieri (American Institute of Architects State Preservation Coordinator/New York State)

Thomas K. Duane (New York State Senator)

Lola Finkelstein (Chair, Manhattan Community Board 5)

Richard N. Gottfried (New York State Assembly Member)

Phillip Glenn Koski (Heritage Preservation Commissioner, City of Minneapolis)

Carolyn Maloney (United States Congress Member)

Joyce Matz (writing as Co-Chair, Landmarks Committee, Community Board 5)

Stanislaus von Moos (Professor of Art History, Zurich University)

Eva Moskowitz (New York City Council Member)

Herbert Muschamp (former Architecture Critic, The New York Times)

Jerrold Nadler (United States Congress Member)

Jerome X. O'Donovan (New York City Council Member)

Christine Quinn (New York City Council Member)

Carole Rifkind (architectural historian)

Witold Rybczynski (Professor of Urbanism, University of Pennsylvania)

Eric T. Schneiderman (New York State Senator)

Elliott D. Sclar (Professor of Urban Planning, Columbia University)

Michael Sorkin (architect, contributing editor of Architectural Record and Metropolis)

Robert A.M. Stern (Dean, Yale School of Architecture)

Scott Stringer (New York State Assembly Member)

Anthony M. Tung (former New York City Landmarks Preservation Commissioner)

Tom Wolfe (journalist)

 

*Constituent members of The Fine Arts Federation include:



American Abstract Artists

American Institute of Architects, Brooklyn Chapter

American Institute of Architects, New York Chapter

American Planning Association, NY Metropolitan Chapter

American Society of Interior Designers, NY Metropolitan Chapter

American Society of Landscape Architects, NY Chapter

The Architectural League of NY

Associates of the Art Commission

Decorators Club

Historic Districts Council

Municipal Art Society

National Academy of Design

National Sculpture Society

National Society of Mural Painters

New York Artists Equity Association, Inc.

New York Society of Architects

New Yorkers for Parks

Public Art Fund

Sculptors Guild Van Alen Institute
7. Heretofore, on information and belief, on a date or dates presently unknown to Petitioner, the Museum Respondents entered into a conspiracy to defraud Petitioner and these other organizations and citizens, by obstructing and subverting the lawful governmental functioning of the New York City Landmarks Preservation Commission to prevent it from performing its responsibilities in considering and determining whether 2 Columbus Circle should be designated as a protected Landmark under the New York City Charter and Administrative Code. Said conspiracy had as one of its objects to deprive Petitioner and its members, as well as other citizens and taxpayers of New York City, of their constitutional right to petition the government for redress of grievances as guaranteed by the State and U.S. Constitutions.

8. To assist in carrying out the aforesaid conspiracy, the Museum Respondents designated JEROME A. CHAZEN as Chairman of the Museum’s Capital Campaign.

9. It was part of Respondents’ plan and conspiracy that key City officials serving as members of the Museum’s Board of Governors would take action to prevent the Landmarks Commission from conducting any public hearing into the designation of 2 Columbus Circle as a City Landmark.

10. Pursuant to the aforesaid conspiracy, the Museum Respondents caused architectural plans to be prepared to demolish and replace the exterior facade of 2 Columbus Circle. MICHAEL R. BLOOMBERG, Mayor of the City of New York, along with C. VIRGINIA FIELDS, Borough President of Manhattan, both of them members of the Board of the Museum, then agreed to publicly announce the City’s approval and endorsement of those plans, thereby foreclosing and obstructing the Landmarks Preservation Commission process. On April 2, 2003, a press conference was held at City Hall at which Mayor BLOOMBERG unveiled the new building plan and, in the presence of Respondent TIERNEY, attending the press conference in his official capacity as Chair of the Landmarks Commission, declared:

Architect Brad Cloepfil has come up with a brilliant design that will integrate this building back into the urban fabric of the neighborhood while preserving its unique personality. I am delighted that Two Columbus Circle will once again thrive as a museum and as a distinguished work of architecture that will exemplify the pivotal role that the arts play in the economic, social and educational life of our City.
At the same press conference, Manhattan Borough President FIELDS declared:

The new presence of the Museum of Arts & Design will add a distinctive architectural element to Columbus Circle.


A copy of the official press release from the NYC Department of Economic Development reporting this City Hall press conference is attached as Exhibit “B.”

11. On information and belief, BLOOMBERG and FIELDS serve as members of the Board of Governors of the Museum and their names appear on the Museum’s fundraising letterhead while they also serve as City officials. In this dual capacity, they are prohibited by the rules of the NYC Conflicts of Interest Board from using their City positions to benefit the Museum. Their actions on April 2, 2003 in publicly supporting the replacement of the facade of 2 Columbus Circle while the issue of its landmark designation and the holding of a public hearing on the question was pending and unresolved before the Commission appears to be a clear violation of those rules.

12. The actions of these Respondents denied Petitioner’s members and other citizens and organizations of their First Amendment constitutional rights in violation of the oath of office sworn to by these City officials to support and uphold the Constitution of the United States and the Constitution of the State of New York.

13. In further pursuance of the aforesaid conspiracy, the Museum Respondents engaged Respondent LAURIE BECKELMAN, former Chair of the Landmarks Preservation Commission, to communicate ex parte with Respondent ROBERT B. TIERNEY, present Chair of the Commission, in order to block any public hearing by the Landmarks Commission into the question of landmark designation for 2 Columbus Circle. Thereafter, extensive ex parte communications took place between Respondents BECKELMAN and TIERNEY, copies of which are attached as Exhibit “C.”

14. Ex parte communications between an interested party and the presiding officer of the Landmarks Preservation were in direct violation of Section 1046 of the New York City Charter and Administrative Code, which states:

§ 1046. Adjudication. Where any agency is authorized to conduct an adjudication, it shall act, at a minimum, in accordance with the provisions set forth below. ***


c. Hearing. 1. All parties shall be afforded an opportunity for a hearing within a reasonable time. At the hearing the parties shall be afforded due process of law, including the opportunity to be represented by counsel, to issue subpoenas or request that a subpoena be issued, to call witnesses, to cross-examine opposing witnesses and to present oral and written arguments on the law and facts. Adherence to formal rules of evidence is not required. No ex parte communications relating to other than ministerial matters regarding a proceeding shall be received by a hearing officer, including internal agency directives not published as rules.
(Emphasis added.)
15. The foregoing conspiracy has successfully prevented any public hearing by the Landmarks Preservation Commission on the landmark eligibility of 2 Columbus Circle. Meanwhile, the Museum Respondents have launched a capital fundraising campaign chaired by Respondent CHAZEN, soliciting funds from the general public for the purchase of 2 Columbus Circle from the City of New York and for the demolition and replacement of its facade, in direct defiance and disregard of the public interest and rights of the citizens and taxpayers of the City in its designation as a City Landmark and its preservation as part of the City’s heritage.
CLAIM AGAINST RESPONDENT TIERNEY

16. On April 3, 2003, the very next day following the press conference at which the Mayor and President of the Borough of Manhattan both publicly announced their support of the Museum’s plan to install a new facade on 2 Columbus Circle, Respondents TIERNEY and BECKELMAN held a private one-hour meeting in TIERNEY’s office at the Landmarks Preservation Commission. At or about the same time, Respondents TIERNEY and BECKELMAN became active members of the conspiracy to defraud and to obstruct the governmental functions of the Commission.

17. Thereafter, the said co-conspirators exchanged secret private communications on a continuing basis, during which Respondent TIERNEY:


  • Held private meetings and telephone conferences with Respondent BECKELMAN;

  • Provided private access to official Commission correspondence to Respondent BECKELMAN;

  • Exchanged information with Respondent BECKELMAN on the activities of Petitioner and other proponents of a public hearing on 2 Columbus Circle (“what they’re up to”): “Did you see this?” “Heads up.” “Would love to catch up.” “For your eyes only.” “Their version.”

  • Received the thanks of Respondent BECKELMAN “for all your support.”

Copies of these and other ex parte communications recently obtained by Petitioner under the Freedom of Information Law are annexed as Exhibit “C.”

18. These secret ex parte communications relating to 2 Columbus Circle were two-way, with Respondent BECKELMAN sending communications to Respondent TIERNEY and vice versa. These communications all supported the Museum of Art & Design’s plan to demolish the facade of 2 Columbus Circle. Most significantly they demonstrate TIERNEY’s bias and lack of objectivity and impartiality and his resulting unfitness to serve as presiding officer over any hearings or deliberations relating to landmark eligibility or designation of 2 Columbus Circle.

19. The active involvement of TIERNEY in the conspiracy to obstruct and subvert the proper governmental functioning of his own City agency is clearly shown in a single exchange of emails between Respondents TIERNEY and BECKELMAN on June 6, 2003. (See copy of printout included in Exhibit “C.”) The exchange began with TIERNEY forwarding to BECKELMAN an email he had received the previous day from Peg Breen, at the New York City Landmarks Conservancy, which stated:

the landmarks conservancy has also always felt that this building deserved a “day in court” at an lpc hearing. i am enclosing a letter sent to holly hotchner. i realize your position, but you should know how many people think this building is worth saving. thanks. (See attached file: holly.wpd)


In his email forwarding this communication to BECKELMAN, TIERNEY stated:
From: Robert B. Tierney

Sent: Friday, June 6, 2003 10:36 AM

To: Laurie Beckelman

Subject: 2 columbus circle


FYI in confidence.

Things seem to be getting racheted [sic] up.

Bob
BECKELMAN responded to TIERNEY as follows:
Laurie Beckelman To: Robert B. Tierney

Subject: RE: 2 Columbus circle


06/06 2003 10:35 AM
Yes I know about this and the League and National trust letters, *** and when are you free to talk? thanks, Laurie
[*** Matter deleted by LPC FOIL officer. without explanation.]
TIERNEY promptly responded via email to BECKELMAN:
Robert B. Tierney To: Laurie Beckelman

06/06/2003 11:18 AM Subject: Re: 2 Columbus Circle


Call anytime...in office now.

20. During the course of the earlier FOIL enforcement proceeding brought in this Court by Petitioner against the Commission (Index No. 1179996/2004) Petitioner’s Counsel informed the Court and the City Corporation Counsel, as attorney for the Landmarks Preservation Commission, in a Supplemental Petition filed on February 1, 2005, of the existence of the secret communications showing that TIERNEY’s participation in the decision not to hold a public hearing on 2 Columbus Circle had been tainted by bias in favor of an interested party. No voluntary recusal has since occurred.

21. On May 17, 2005 Petitioner filed with the Commission a Request for Evaluation of 2 Columbus Circle, including a Request for Recusal of Chair TIERNEY (copy annexed as Exhibit “D”). No voluntary recusal has yet occurred.

22. Petitioner therefore requests this Court to issue an order to prohibit and bar Respondent TIERNEY from any further involvement or communications of any kind relating to the possible designation of 2 Columbus Circle as a New York City Landmark.

23. Since hearings of the Commission involve property rights, they are “quasijudicial” in nature and subject to the legal and ethical criteria for judicial proceedings under New York State law. These criteria are well stated by the Third Department Appellate Division in Bender v. Board of Regents, 30 NYS2d 779 at 784 (3d Dept. 1941):

In the administration of justice it is not only requisite that a tribunal invested with judicial powers should be honest, unbiased, impartial and disinterested in fact, but equally essential that all doubt or suspicion to the contrary should be jealously guarded against and eliminated. Not only is it the duty of those exercising judicial functions to render a righteous judgment but it is of transcendent importance to the litigants and to the public generally that there should not be the slightest suspicion as to their fairness and integrity. The impartiality of the judgment seat must always remain above suspicion.


This standard has been repeatedly flaunted by Respondent TIERNEY, requiring the Court to take appropriate corrective action.
CLAIM AGAINST ALL RESPONDENTS
24. As evidenced by the ex parte emails attached hereto as Exhibit “C”, a primary target of the aforesaid conspiracy has been to block Petitioner Landmark West! in its efforts to rally citizen support for a public hearing on 2 Columbus Circle before the Landmarks Preservation Commission. As a result of the conspirators’ unlawful and fraudulent conduct, Landmark West! has suffered substantial financial and other injury in an amount exceeding $130,000.

25. The Respondents have acted willfully, intentionally and maliciously for financial gain. Fund solicitations by the MUSEUM assure prospective contributors that it will soon construct a new museum at 2 Columbus Circle. Solicitations sent to the general public have featured the construction project as a reason for contributing to the Museum. (See Exhibits “D” and “E” attached hereto.) These fund solicitations also feature an upcoming public exhibition of works from Respondent CHAZEN’s private collection, forty pieces of which have been given to the Museum, while fifty-six other pieces remain in the ownership of Mr. and Mrs. CHAZEN. (See Museum Press Release of March 5, 2005, Exhibit “G.”) As a result, Respondent CHAZEN will realize a substantial personal financial benefit from the increased value of these pieces resulting from their exhibition, an arrangement that violates the fundamental principles of the Exhibition Guidelines of the American Museum Association (attached as Exhibit “H.”) On information and belief, Respondent JEROME CHAZEN has been a prominent figure in the conspiracy in his role as Chair of the Museum’s Capital Campaign.

26. Petitioner Landmark West! has been injured as a result of this willful, deliberate and malicious conspiracy and should be awarded both compensatory and punitive damages.
WHEREFORE, petitioner Landmark West! petitions this Court to enter an order and judgment as follows:

1. Barring and prohibiting Respondent TIERNEY from any further involvement or communications of any kind relating to the evaluation, consideration or hearing on 2 Columbus Circle as a New York City Landmark.

2. Directing Respondent BECKELMAN and the Museum Respondents to cease and desist from any direct or indirect ex parte communication with Respondent ROBERT B. TIERNEY or other member the Landmarks Preservation Commission relating to 2 Columbus Circle.

3. Holding all Respondents individually and collectively liable for any damage to the exterior facade of 2 Columbus Circle pending the final determination of its status as a potential City Landmark, including liability for the cost to replace and restore any damaged portions thereof.

4. Awarding Petitioner Landmark West! compensatory damages of not less than $130,000 together with punitive damages in the amount of $1,000,000 (to be used to support landmark preservation activities) against all Respondents, together with costs and attorney’s fees.

5. Granting such other and further relief as the Court deems appropriate.

Dated: New York, New York

May 23, 2005

__________________________________

Whitney North Seymour, Jr.

425 Lexington Avenue, Room 1721

New York, New York 10017

Tel: (212) 455-7640

Fax: (212) 455-2502


T. Gorman Reilly

1070 Park Avenue, Suite 11A

New York, New York 10128

Tel: (212) 831-7062


Attorneys for Plaintiff




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