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FILED: NEW YORK COUNTY CLERK 12/01/2023 02:47 PM INDEX NO. 158574/2023
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/01/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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PROJJAL DUTTA,
Plaintiff,
-against- AFFIRMATION IN
OPPOSITION TO THE
LISA SILVERSMITH a/k/a LISA FIEKOWSKY ORDER TO SHOW CAUSE
and THE NEW YORK CITY,
Index No. 158574/2023
Defendants.
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ISABELLA J. KENDRICK, an attorney duly admitted to practice in the Courts
of the State of New York, affirms the following to be true under the penalties of perjury pursuant
to Section 2106 of the New York Civil Practice Law and Rules (hereinafter “CPLR”).
1. I am an Assistant Corporation Counsel in the Office of Hon. Sylvia O.
Hinds-Radix, Corporation Counsel of the City of New York, attorney for Defendant City of New
York in the above-referenced matter. I submit this affirmation in opposition to the Order to
Show Cause and Temporary Restraining Order in which Plaintiff seeks an order, inter alia,
“Restraining . . . New York City and LISA SILVERSMITH a/k/a LISA FIEKOWSKY from
enforcing any demolition order with respect to the property, 451 Convent Avenue, New York,
New York, 10031,” and “Staying and Vacating demolition order issued by the Defendant, The
New York City Department of Buildings with respect to Defendant LISA SILVERSMITH a/k/a
LISA FIEKOWSKY’s property located at 451 Convent Avenue, New York, New York 10031.”
See Signed Order to Show Cause (NYSCEF Doc. No. 7) at 2.
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2. I make this affirmation based upon my review of records maintained by
the City of New York, discussions with City employees and upon the papers and proceedings
heretofore had in this proceeding.
RELEVANT STATUTORY PROVISIONS AND RULES
3. Pursuant to Section 643 of the New York City Charter (“City Charter”),
DOB is authorized to enforce the laws that govern, inter alia, the construction, alteration,
maintenance, use, and occupancy of buildings in New York City. In addition, pursuant to that
same section, DOB is empowered to perform the City’s functions relating to unsafe buildings
and structures, including the power to remove or remedy unsafe conditions and demolish unsafe
buildings.
4. Pursuant to the City’s police power, DOB has the authority and mandate
to protect the public from any risk of collapse from a structure and to determine when an
emergency condition exists in a structure, requiring the City to take immediate steps to abate it.
When a building poses an immediate threat to the public health and safety, DOB may direct the
New York City Department of Housing Preservation and Development (“HPD”) to perform
emergency work necessary to make the structure safe. See City Charter § 643; New York City
Administrative Code (“Administrative Code”) § 28-215.1.
5. If DOB “determines that a structure or any part thereof is in imminent
danger of collapse and the exigency of the situation is such that any delay may cause further
danger to the public safety,” then it may direct HPD “to perform or arrange the performance of
the emergency demolition of such structure or part thereof or such other work as deemed by the
commissioner to make it safe.” See Administrative Code § 28-215.1.
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STATEMENT OF RELEVANT FACTS
6. Upon information and belief, plaintiff Projjal Dutta is the owner of a
building located at 453 Convent Avenue, New York, New York 10031 (“453 Convent”).
7. Upon information and belief, defendant Lisa Fiekowsky a/k/a Lisa
Silversmith (“Ms. Fiekowsky”) is the owner of a building located at 451 Convent Avenue, New
York, New York 10031 (“subject premises” or “Landmark”).
8. The City and the Landmarks Preservation Commission (“LPC”)
commenced City of N.Y. v. Lisa Fiekowsky et al., Index No. 450963/2019 (Hagler, J.) in 2019,
seeking relief against the owner(s) of the subject premises, as well as civil penalties. City
plaintiffs sought an order to enjoin the owner(s) from allowing the Landmark at 451 Convent
Avenue to continue to deteriorate, and to require the owner(s) to repair and maintain the
building as required by section 25-311 of the Landmarks Law. After owner Ms. Fiekowsky
failed to appear, City plaintiffs moved for default judgment, which was granted in an order by
Justice Hagler, dated May 26, 2020. A copy of Justice Hagler’s May 26, 2020 Order is annexed
hereto as Exhibit “A.”
9. Although the LPC continued to attempt to communicate with and
encourage Ms. Fiekowsky to repair the subject premises, the structure continued to deteriorate.
In May 2022, Department of Buildings issued an Emergency Declaration stating that the
building was “structurally compromised, disrepair, actively deteriorating with additional floor
collapses and poses a danger to the public and adjacent properties.” The Emergency Declaration
directed the owner of the subject premises to fully demolish the building, and grade and fence
the site. A copy of the May 5, 2022 Emergency Declaration is annexed hereto as Exhibit “B.”
10. By Memorandum dated April 28, 2022, DOB referred the Emergency
Declaration to the Department of Housing Preservation & Development (“HPD”) for demolition
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of the subject premises. A copy of the April 28, 2022 Memorandum is annexed hereto as
Exhibit “C.”
11. An inquest hearing for City of N.Y. v. Lisa Fiekowsky et al., Index No.
450963/2019 (Hagler, J.) was scheduled for June 22, 2022, at which time Ms. Fiekowsky
appeared pro se. The inquest hearing was adjourned to allow time for Ms. Fiekowsky to retain
counsel. Another adjournment was granted at the rescheduled hearing on August 8, 2022, to
allow defendant’s recently-retained counsel time to familiarize himself with the matter.
12. Upon information and belief, after retaining counsel, Ms. Fiekowsky
finally began to take action, instead of continuing to neglect the subject premises. Upon
information and belief, Ms. Fiekowsky retained an engineering firm, Thornton Tomasetti, to
stabilize and repair the subject property, and began working through the permitting process
required to make the necessary repairs with multiple City agencies. Due to these developments,
the parties in the City of N.Y. v. Lisa Fiekowsky et al. matter before Justice Hagler have jointly
requested, and been granted, adjournments of the inquest hearing to afford Ms. Fiekowsky the
opportunity to commence stabilization and repair work at the subject premises.
13. On July 14, 2022, DOB issued a hold on HPD’s execution of the
demolition, in order to give the owner the opportunity submit plans and applications, obtain
permits and commence repair work. A copy of DOB’s Emergency Declaration Database for the
May 5, 2022 Emergency Declaration is annexed hereto as Exhibit “D.” Further, as Ms.
Fiekowsky’s representatives continued to work through the permitting process, DOB continued
to issue holds on its demolition order for the subject premises. The most recent hold issued by
DOB expires on December 3, 2023. See Exhibit “D.”
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14. Upon information and belief, all necessary permits for the construction
work at the subject premises have now been issued by the necessary city agencies. Upon
information and belief, Ms. Fiekowsky’s retained construction firm was scheduled to begin
work at the subject premises the week of November 27, 2023.
The Instant Action
15. On October 18, 2023, plaintiff filed the instant Order to Show Cause, and
also filed an Affidavit and Memorandum of Law, requesting that the Court, ex parte, stay the
City’s demolition order for the subject premises, even though DOB had already placed a hold
on such order.
16. Plaintiff’s Order to Show Cause was signed by Hon. Judy Kim. The City
was not heard regarding the request for an immediate stay of the demolition. See Signed Order
to Show Cause (NYSCEF Doc. No. 7).
17. In support of the Order to Show Cause, plaintiff alleged, without evid ence
or support, that “the brick structure of 451 Property is sound, even though the timber structure is
in an advanced state of decay,” and that “there is no risk of collapse, and no need for
demolition.” See Affidavit of Projjal Dutta (NYSCEF Doc. No. 2). Plaintiff also, somewhat
inexplicably, appears to believe that Ms. Fiekowsky is “taking advantage of her family
connections to make sure the demolition order goes through,” even though Ms. Fiekowsky has
retained engineering and construction firms, and obtained all required permits for the
construction work necessary to stabilize the building at the subject premises. See id.
Current Conditions at the Subject Premises
41. As noted, Ms. Fiekowsky has received all necessary permits from City
agencies to begin construction work at the subject premises. However, due to Ms. Fiekowsky’s
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long history of neglecting the subject premises, DOB must retain the authority to enforce the
demolition order at the subject premises if Ms. Fiekowsky abandons the work at the subject
premises, in order to protect public safety.
DOB RATIONALLY AND REASONABLY
ISSUED THE CHALLENGED EMERGENCY
DECLARATION_________________________
42. The City is granted considerable deference when it invokes emergency
procedures to protect the public from an imminent safety risk due to unsafe building conditions.
The applicable analysis is whether the City’s determination to issue the ED was rational and
reasonable and whether DOB abused its discretion in issuing the Declaration. See 432 E. 11th
St. Corp. v. City of N.Y., 2011 N.Y. Misc. LEXIS 2129, at *9 (Sup. Ct. N.Y. Cnty. Apr. 29,
2011) (denying claim that City improperly issued an immediate emergency declaration);
Idlewild 94-100 Clark, LLC v. City of N.Y., 27 Misc.3d 1006, 1017 (Sup. Ct. Kings Cnty.. Apr.
1, 2010) (“Absent a clear showing by plaintiffs that the determination of the DOB [to issue an
emergency declaration] was arbitrary and capricious or in any way irrational, such
determination should not be disturbed.”), aff’d, One Monroe, LLC v. City of N.Y., 89 A.D.3d
812, 812 (2d Dep’t 2011); Marigin v. City of N.Y., 215 A.D.2d 539, 540 (2d Dep’t 1995). See
also Purdy v. Kreisberg, 47 N.Y.2d 354, 358 (1979) (reviewing court in Article 78 proceeding
“may not substitute its own judgment of the evidence for that of the administrative agency, but
should review the whole record to determine whether there exists a rational basis to support the
findings upon which the agency’s determination is predicated”).
43. DOB’s determination that the subject premises created an immediate
public danger, and that an Emergency Declaration was therefore warranted, was grounded in
professional recommendations obtained through multiple inspections of the subject premises by
DOB, including inspections performed by a licensed professional engineer, and was not an abuse
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of discretion. It was rational and reasonable for DOB to rely on its own inspection reports and
analyses, which found that the subject premises posed an emergency safety risk and that the
safety risk should be remediated by a complete demolition.
44. DOB issued the Emergency Declaration only after an inspection
confirmed that the subject premises was structurally compromised, and posed a danger to the
public and adjacent properties. See Exhibit “B.” Therefore, this Court should not disturb the
agency’s reasoned judgment.
45. Furthermore, with the dangerous conditions observed by DOB still
existing, DOB’s determination that the subject premises still poses a danger to public safety and
should therefore be fully demolished is rational and reasonable.
46. Even assuming that the conclusory statement by plaintiff that “there is no
risk of collapse, and no need for demolition,” is considered, it is still insufficient to overcome
DOB’s determination that the building needs be demolished. 1 In 620 W. 182nd St. Hghts.
Assoc., LLC v. HPD, the Appellate Division, First Department held that “[t]he differing
conclusions reached by petitioner’s expert are insufficient to annul the agency’s determination . .
. Moreover, ‘even if different conclusions could be reached as a result of conflicting evidence, a
court may not substitute its judgment for that of the agency where, the agency’s determination is
supported by the record.’” 149 A.D.3d 337, 338 (1st Dep’t 2018) (quoting Matter of Cohen v.
State of N.Y., 2 A.D.3d 522, 525, 770 NYS2d 361 [2d Dep’t 2003]).
47. Thus, the Court should lift the stay prohibiting the City from demolishing
the remainder of the subject premises.
1
Presumably, plaintiff has also not accessed the subject premises to inspect the property, so it is unclear
how he came to this conclusion.
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PLAINTIFF FAILS TO MAKE THE
NECESSARY SHOWING FOR THE
ISSUANCE OF A PRELIMINARY
INJUNCTION.
53. It appears that plaintiff seeks an injunction enjoining the City from
demolishing the subject premises. See Signed Order to Show Cause (NYSCEF Doc. No. 7).
54. Plaintiff cannot meet any of the requirements for the issuance of a
preliminary injunction, and this request must be denied.
55. A preliminary injunction is a drastic remedy that may be granted only
where the plaintiff demonstrates that it will suffer irreparable harm absent the injunction. A
party seeking a preliminary injunction bears the heavy burden of proving each of the following:
(1) the likelihood of its ultimate success on the merits of the underlying claim; (2) that it will
suffer irreparable injury if the relief is not granted; and (3) that, on balance, the equities favor
granting the preliminary injunctive relief. State of N.Y. v. Fine, 72 N.Y.2d 967, 968-69 (1988);
W.T. Grant Company v. Srogi, 52 N.Y.2d 496, 517 (1981); Schneider Leasing Plus, Inc. v.
Stallone, 172 A.D.2d 739, 739 (2d Dept.), appeal dismissed, 78 N.Y.2d 1043 (1991); Zonghetti
v. Jeromack, 150 A.D.2d 561, 562 (2d Dep’t 1989).
56. Further, plaintiff lacks standing to enjoin the demolition of the subject
premises. To have standing to raise a legal claim, a party must suffer an “injury in fact—an
actual legal stake in the matter being adjudicated.” See Silver v. Pataki, 96 N.Y.2d 532, 539
(2001). The party who commences an action or proceeding must demonstrate a direct, specific,
and concrete injury to his or her own personal or property interests as a result of the challenged
action. See Abrams v. N.Y.C. Tr. Auth., 48 A.D.2d 69, 70 (1st Dep’t 1975), aff’d, 39 N.Y.2d
990 (1976). Here, plaintiff does not have a property interest in the subject premises, nor has he
sought to overturn the May 5, 2022 Emergency Declaration.
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Plaintiff Cannot Succeed on the Merits.
57. Plaintiff cannot prevail here as he has no likelihood of success on the
merits. As set forth above, DOB’s determination was rational and reasonable and based upon
the finding of a DOB professional engineer that the subject premises is structurally
compromised.
Plaintiff Cannot Demonstrate Irreparable Harm.
58. Plaintiff alleges that DOB’s demolition order “will have negative impact
on my building and other buildings in the Historic Hamilton Heights neighborhood.” See
Affidavit of Projjal Dutta (NYSCEF Doc. No. 2). However, at this point in time, Ms.
Fiekowsky has retained an engineering firm and made considerable progress towards beginning
construction work to stabilize and repair the subject premises. DOB has continued to issue holds
on its demolition order in order to allow this continued progress. See Exhibit “D.” Thus,
plaintiff cannot argue that injury is imminent or even likely at this point in time.
“Speculative and conjectural injuries . . . cannot support the issuance of a preliminary
injunction.” Comm. to Abolish Sport Hunting v. Palisades Interstate Park Comm’n, 84 A.D.2d
798, 798, 444 N.Y.S.2d 161 (2d Dep’t 1981); 91st Street Co. v. Robinson, 242 A.D.2d 502,
502, 662 N.Y.S.2d 497 (1st Dep’t 1997) (no “need to resort to the drastic remedy of
a preliminary injunction given” . . . “speculative nature of plaintiff’s claim”).
The Equities Favor the Defendant.
59. The balance of the equities tips in favor of the City, and against granting
plaintiff an injunction, since plaintiff’s claim is merely a request to prevent DOB from carrying
out its statutory duties. Depina v. Educ. Testing Svc., 31 A.D.2d 744, 744 (2d Dep’t 1969);
Greenwich Towers Assocs. v. McLean, Grove & Co., Inc., 17 A.D.2d 733, 733 (1st Dep’t 1962.
Granting plaintiff’s requested injunction would also weigh against the public interest because it
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would result in an order that will undermine the City’s authority and responsibility to keep the
public safe..
60. For the foregoing reasons, a preliminary injunction is not warranted.
WHEREFORE, for the reasons set forth herein, Defendant City of New York
respectfully request that the stay be lifted and the City be permitted to continue with the lawful
and necessary demolition of the subject premises, if deemed necessary by DOB.
Dated: New York, New York
December 1, 2023
HON. SYLVIA O. HINDS-RADIX
Corporation Counsel of the
City of New York
Attorney for Defendant City of New York
100 Church Street, Room 5-170
New York, New York 10007
Tel: (212) 356-2210
BY: ____________________________
Isabella J. Kendrick
Assistant Corporation Counsel
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CERTIFICATION
In accordance with Rule 17 of the Uniform Civil Rules for the Supreme Court and
County Court, 22 NYCRR § 202.8-b, the undersigned certifies that the word count in this
affirmation (not including the caption, signature block, and this certification), as established
using the word count on the word-processing system used to prepare it, is 2,603.
Dated: New York, New York
December 1, 2023
HON. SYLVIA HINDS-RADIX
Corporation Counsel of the
City of New York
Attorney for Respondents
100 Church Street, Room 5-170
New York, New York 10007
(212) 356-2210
By: ______________________________
ISABELLA J. KENDRICK
Assistant Corporation Counsel
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Preview
FILED: NEW YORK COUNTY CLERK 12/01/2023 02:47 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/01/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------x PROJJAL DUTTA, Plaintiff, -against- AFFIRMATION IN OPPOSITION TO THE LISA SILVERSMITH a/k/a LISA FIEKOWSKY ORDER TO SHOW CAUSE and THE NEW YORK CITY, Index No. 158574/2023 Defendants. -----------------------------------------------------------------------x ISABELLA J. KENDRICK, an attorney duly admitted to practice in the Courts of the State of New York, affirms the following to be true under the penalties of perjury pursuant to Section 2106 of the New York Civil Practice Law and Rules (hereinafter “CPLR”). 1. I am an Assistant Corporation Counsel in the Office of Hon. Sylvia O. Hinds-Radix, Corporation Counsel of the City of New York, attorney for Defendant City of New York in the above-referenced matter. I submit this affirmation in opposition to the Order to Show Cause and Temporary Restraining Order in which Plaintiff seeks an order, inter alia, “Restraining . . . New York City and LISA SILVERSMITH a/k/a LISA FIEKOWSKY from enforcing any demolition order with respect to the property, 451 Convent Avenue, New York, New York, 10031,” and “Staying and Vacating demolition order issued by the Defendant, The New York City Department of Buildings with respect to Defendant LISA SILVERSMITH a/k/a LISA FIEKOWSKY’s property located at 451 Convent Avenue, New York, New York 10031.” See Signed Order to Show Cause (NYSCEF Doc. No. 7) at 2. 1 of 11 FILED: NEW YORK COUNTY CLERK 12/01/2023 02:47 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/01/2023 2. I make this affirmation based upon my review of records maintained by the City of New York, discussions with City employees and upon the papers and proceedings heretofore had in this proceeding. RELEVANT STATUTORY PROVISIONS AND RULES 3. Pursuant to Section 643 of the New York City Charter (“City Charter”), DOB is authorized to enforce the laws that govern, inter alia, the construction, alteration, maintenance, use, and occupancy of buildings in New York City. In addition, pursuant to that same section, DOB is empowered to perform the City’s functions relating to unsafe buildings and structures, including the power to remove or remedy unsafe conditions and demolish unsafe buildings. 4. Pursuant to the City’s police power, DOB has the authority and mandate to protect the public from any risk of collapse from a structure and to determine when an emergency condition exists in a structure, requiring the City to take immediate steps to abate it. When a building poses an immediate threat to the public health and safety, DOB may direct the New York City Department of Housing Preservation and Development (“HPD”) to perform emergency work necessary to make the structure safe. See City Charter § 643; New York City Administrative Code (“Administrative Code”) § 28-215.1. 5. If DOB “determines that a structure or any part thereof is in imminent danger of collapse and the exigency of the situation is such that any delay may cause further danger to the public safety,” then it may direct HPD “to perform or arrange the performance of the emergency demolition of such structure or part thereof or such other work as deemed by the commissioner to make it safe.” See Administrative Code § 28-215.1. -2- 2 of 11 FILED: NEW YORK COUNTY CLERK 12/01/2023 02:47 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/01/2023 STATEMENT OF RELEVANT FACTS 6. Upon information and belief, plaintiff Projjal Dutta is the owner of a building located at 453 Convent Avenue, New York, New York 10031 (“453 Convent”). 7. Upon information and belief, defendant Lisa Fiekowsky a/k/a Lisa Silversmith (“Ms. Fiekowsky”) is the owner of a building located at 451 Convent Avenue, New York, New York 10031 (“subject premises” or “Landmark”). 8. The City and the Landmarks Preservation Commission (“LPC”) commenced City of N.Y. v. Lisa Fiekowsky et al., Index No. 450963/2019 (Hagler, J.) in 2019, seeking relief against the owner(s) of the subject premises, as well as civil penalties. City plaintiffs sought an order to enjoin the owner(s) from allowing the Landmark at 451 Convent Avenue to continue to deteriorate, and to require the owner(s) to repair and maintain the building as required by section 25-311 of the Landmarks Law. After owner Ms. Fiekowsky failed to appear, City plaintiffs moved for default judgment, which was granted in an order by Justice Hagler, dated May 26, 2020. A copy of Justice Hagler’s May 26, 2020 Order is annexed hereto as Exhibit “A.” 9. Although the LPC continued to attempt to communicate with and encourage Ms. Fiekowsky to repair the subject premises, the structure continued to deteriorate. In May 2022, Department of Buildings issued an Emergency Declaration stating that the building was “structurally compromised, disrepair, actively deteriorating with additional floor collapses and poses a danger to the public and adjacent properties.” The Emergency Declaration directed the owner of the subject premises to fully demolish the building, and grade and fence the site. A copy of the May 5, 2022 Emergency Declaration is annexed hereto as Exhibit “B.” 10. By Memorandum dated April 28, 2022, DOB referred the Emergency Declaration to the Department of Housing Preservation & Development (“HPD”) for demolition -3- 3 of 11 FILED: NEW YORK COUNTY CLERK 12/01/2023 02:47 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/01/2023 of the subject premises. A copy of the April 28, 2022 Memorandum is annexed hereto as Exhibit “C.” 11. An inquest hearing for City of N.Y. v. Lisa Fiekowsky et al., Index No. 450963/2019 (Hagler, J.) was scheduled for June 22, 2022, at which time Ms. Fiekowsky appeared pro se. The inquest hearing was adjourned to allow time for Ms. Fiekowsky to retain counsel. Another adjournment was granted at the rescheduled hearing on August 8, 2022, to allow defendant’s recently-retained counsel time to familiarize himself with the matter. 12. Upon information and belief, after retaining counsel, Ms. Fiekowsky finally began to take action, instead of continuing to neglect the subject premises. Upon information and belief, Ms. Fiekowsky retained an engineering firm, Thornton Tomasetti, to stabilize and repair the subject property, and began working through the permitting process required to make the necessary repairs with multiple City agencies. Due to these developments, the parties in the City of N.Y. v. Lisa Fiekowsky et al. matter before Justice Hagler have jointly requested, and been granted, adjournments of the inquest hearing to afford Ms. Fiekowsky the opportunity to commence stabilization and repair work at the subject premises. 13. On July 14, 2022, DOB issued a hold on HPD’s execution of the demolition, in order to give the owner the opportunity submit plans and applications, obtain permits and commence repair work. A copy of DOB’s Emergency Declaration Database for the May 5, 2022 Emergency Declaration is annexed hereto as Exhibit “D.” Further, as Ms. Fiekowsky’s representatives continued to work through the permitting process, DOB continued to issue holds on its demolition order for the subject premises. The most recent hold issued by DOB expires on December 3, 2023. See Exhibit “D.” -4- 4 of 11 FILED: NEW YORK COUNTY CLERK 12/01/2023 02:47 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/01/2023 14. Upon information and belief, all necessary permits for the construction work at the subject premises have now been issued by the necessary city agencies. Upon information and belief, Ms. Fiekowsky’s retained construction firm was scheduled to begin work at the subject premises the week of November 27, 2023. The Instant Action 15. On October 18, 2023, plaintiff filed the instant Order to Show Cause, and also filed an Affidavit and Memorandum of Law, requesting that the Court, ex parte, stay the City’s demolition order for the subject premises, even though DOB had already placed a hold on such order. 16. Plaintiff’s Order to Show Cause was signed by Hon. Judy Kim. The City was not heard regarding the request for an immediate stay of the demolition. See Signed Order to Show Cause (NYSCEF Doc. No. 7). 17. In support of the Order to Show Cause, plaintiff alleged, without evid ence or support, that “the brick structure of 451 Property is sound, even though the timber structure is in an advanced state of decay,” and that “there is no risk of collapse, and no need for demolition.” See Affidavit of Projjal Dutta (NYSCEF Doc. No. 2). Plaintiff also, somewhat inexplicably, appears to believe that Ms. Fiekowsky is “taking advantage of her family connections to make sure the demolition order goes through,” even though Ms. Fiekowsky has retained engineering and construction firms, and obtained all required permits for the construction work necessary to stabilize the building at the subject premises. See id. Current Conditions at the Subject Premises 41. As noted, Ms. Fiekowsky has received all necessary permits from City agencies to begin construction work at the subject premises. However, due to Ms. Fiekowsky’s -5- 5 of 11 FILED: NEW YORK COUNTY CLERK 12/01/2023 02:47 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/01/2023 long history of neglecting the subject premises, DOB must retain the authority to enforce the demolition order at the subject premises if Ms. Fiekowsky abandons the work at the subject premises, in order to protect public safety. DOB RATIONALLY AND REASONABLY ISSUED THE CHALLENGED EMERGENCY DECLARATION_________________________ 42. The City is granted considerable deference when it invokes emergency procedures to protect the public from an imminent safety risk due to unsafe building conditions. The applicable analysis is whether the City’s determination to issue the ED was rational and reasonable and whether DOB abused its discretion in issuing the Declaration. See 432 E. 11th St. Corp. v. City of N.Y., 2011 N.Y. Misc. LEXIS 2129, at *9 (Sup. Ct. N.Y. Cnty. Apr. 29, 2011) (denying claim that City improperly issued an immediate emergency declaration); Idlewild 94-100 Clark, LLC v. City of N.Y., 27 Misc.3d 1006, 1017 (Sup. Ct. Kings Cnty.. Apr. 1, 2010) (“Absent a clear showing by plaintiffs that the determination of the DOB [to issue an emergency declaration] was arbitrary and capricious or in any way irrational, such determination should not be disturbed.”), aff’d, One Monroe, LLC v. City of N.Y., 89 A.D.3d 812, 812 (2d Dep’t 2011); Marigin v. City of N.Y., 215 A.D.2d 539, 540 (2d Dep’t 1995). See also Purdy v. Kreisberg, 47 N.Y.2d 354, 358 (1979) (reviewing court in Article 78 proceeding “may not substitute its own judgment of the evidence for that of the administrative agency, but should review the whole record to determine whether there exists a rational basis to support the findings upon which the agency’s determination is predicated”). 43. DOB’s determination that the subject premises created an immediate public danger, and that an Emergency Declaration was therefore warranted, was grounded in professional recommendations obtained through multiple inspections of the subject premises by DOB, including inspections performed by a licensed professional engineer, and was not an abuse -6- 6 of 11 FILED: NEW YORK COUNTY CLERK 12/01/2023 02:47 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/01/2023 of discretion. It was rational and reasonable for DOB to rely on its own inspection reports and analyses, which found that the subject premises posed an emergency safety risk and that the safety risk should be remediated by a complete demolition. 44. DOB issued the Emergency Declaration only after an inspection confirmed that the subject premises was structurally compromised, and posed a danger to the public and adjacent properties. See Exhibit “B.” Therefore, this Court should not disturb the agency’s reasoned judgment. 45. Furthermore, with the dangerous conditions observed by DOB still existing, DOB’s determination that the subject premises still poses a danger to public safety and should therefore be fully demolished is rational and reasonable. 46. Even assuming that the conclusory statement by plaintiff that “there is no risk of collapse, and no need for demolition,” is considered, it is still insufficient to overcome DOB’s determination that the building needs be demolished. 1 In 620 W. 182nd St. Hghts. Assoc., LLC v. HPD, the Appellate Division, First Department held that “[t]he differing conclusions reached by petitioner’s expert are insufficient to annul the agency’s determination . . . Moreover, ‘even if different conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency where, the agency’s determination is supported by the record.’” 149 A.D.3d 337, 338 (1st Dep’t 2018) (quoting Matter of Cohen v. State of N.Y., 2 A.D.3d 522, 525, 770 NYS2d 361 [2d Dep’t 2003]). 47. Thus, the Court should lift the stay prohibiting the City from demolishing the remainder of the subject premises. 1 Presumably, plaintiff has also not accessed the subject premises to inspect the property, so it is unclear how he came to this conclusion. -7- 7 of 11 FILED: NEW YORK COUNTY CLERK 12/01/2023 02:47 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/01/2023 PLAINTIFF FAILS TO MAKE THE NECESSARY SHOWING FOR THE ISSUANCE OF A PRELIMINARY INJUNCTION. 53. It appears that plaintiff seeks an injunction enjoining the City from demolishing the subject premises. See Signed Order to Show Cause (NYSCEF Doc. No. 7). 54. Plaintiff cannot meet any of the requirements for the issuance of a preliminary injunction, and this request must be denied. 55. A preliminary injunction is a drastic remedy that may be granted only where the plaintiff demonstrates that it will suffer irreparable harm absent the injunction. A party seeking a preliminary injunction bears the heavy burden of proving each of the following: (1) the likelihood of its ultimate success on the merits of the underlying claim; (2) that it will suffer irreparable injury if the relief is not granted; and (3) that, on balance, the equities favor granting the preliminary injunctive relief. State of N.Y. v. Fine, 72 N.Y.2d 967, 968-69 (1988); W.T. Grant Company v. Srogi, 52 N.Y.2d 496, 517 (1981); Schneider Leasing Plus, Inc. v. Stallone, 172 A.D.2d 739, 739 (2d Dept.), appeal dismissed, 78 N.Y.2d 1043 (1991); Zonghetti v. Jeromack, 150 A.D.2d 561, 562 (2d Dep’t 1989). 56. Further, plaintiff lacks standing to enjoin the demolition of the subject premises. To have standing to raise a legal claim, a party must suffer an “injury in fact—an actual legal stake in the matter being adjudicated.” See Silver v. Pataki, 96 N.Y.2d 532, 539 (2001). The party who commences an action or proceeding must demonstrate a direct, specific, and concrete injury to his or her own personal or property interests as a result of the challenged action. See Abrams v. N.Y.C. Tr. Auth., 48 A.D.2d 69, 70 (1st Dep’t 1975), aff’d, 39 N.Y.2d 990 (1976). Here, plaintiff does not have a property interest in the subject premises, nor has he sought to overturn the May 5, 2022 Emergency Declaration. -8- 8 of 11 FILED: NEW YORK COUNTY CLERK 12/01/2023 02:47 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/01/2023 Plaintiff Cannot Succeed on the Merits. 57. Plaintiff cannot prevail here as he has no likelihood of success on the merits. As set forth above, DOB’s determination was rational and reasonable and based upon the finding of a DOB professional engineer that the subject premises is structurally compromised. Plaintiff Cannot Demonstrate Irreparable Harm. 58. Plaintiff alleges that DOB’s demolition order “will have negative impact on my building and other buildings in the Historic Hamilton Heights neighborhood.” See Affidavit of Projjal Dutta (NYSCEF Doc. No. 2). However, at this point in time, Ms. Fiekowsky has retained an engineering firm and made considerable progress towards beginning construction work to stabilize and repair the subject premises. DOB has continued to issue holds on its demolition order in order to allow this continued progress. See Exhibit “D.” Thus, plaintiff cannot argue that injury is imminent or even likely at this point in time. “Speculative and conjectural injuries . . . cannot support the issuance of a preliminary injunction.” Comm. to Abolish Sport Hunting v. Palisades Interstate Park Comm’n, 84 A.D.2d 798, 798, 444 N.Y.S.2d 161 (2d Dep’t 1981); 91st Street Co. v. Robinson, 242 A.D.2d 502, 502, 662 N.Y.S.2d 497 (1st Dep’t 1997) (no “need to resort to the drastic remedy of a preliminary injunction given” . . . “speculative nature of plaintiff’s claim”). The Equities Favor the Defendant. 59. The balance of the equities tips in favor of the City, and against granting plaintiff an injunction, since plaintiff’s claim is merely a request to prevent DOB from carrying out its statutory duties. Depina v. Educ. Testing Svc., 31 A.D.2d 744, 744 (2d Dep’t 1969); Greenwich Towers Assocs. v. McLean, Grove & Co., Inc., 17 A.D.2d 733, 733 (1st Dep’t 1962. Granting plaintiff’s requested injunction would also weigh against the public interest because it -9- 9 of 11 FILED: NEW YORK COUNTY CLERK 12/01/2023 02:47 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/01/2023 would result in an order that will undermine the City’s authority and responsibility to keep the public safe.. 60. For the foregoing reasons, a preliminary injunction is not warranted. WHEREFORE, for the reasons set forth herein, Defendant City of New York respectfully request that the stay be lifted and the City be permitted to continue with the lawful and necessary demolition of the subject premises, if deemed necessary by DOB. Dated: New York, New York December 1, 2023 HON. SYLVIA O. HINDS-RADIX Corporation Counsel of the City of New York Attorney for Defendant City of New York 100 Church Street, Room 5-170 New York, New York 10007 Tel: (212) 356-2210 BY: ____________________________ Isabella J. Kendrick Assistant Corporation Counsel - 10 - 10 of 11 FILED: NEW YORK COUNTY CLERK 12/01/2023 02:47 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/01/2023 CERTIFICATION In accordance with Rule 17 of the Uniform Civil Rules for the Supreme Court and County Court, 22 NYCRR § 202.8-b, the undersigned certifies that the word count in this affirmation (not including the caption, signature block, and this certification), as established using the word count on the word-processing system used to prepare it, is 2,603. Dated: New York, New York December 1, 2023 HON. SYLVIA HINDS-RADIX Corporation Counsel of the City of New York Attorney for Respondents 100 Church Street, Room 5-170 New York, New York 10007 (212) 356-2210 By: ______________________________ ISABELLA J. KENDRICK Assistant Corporation Counsel - 11 - 11 of 11