SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF BRONX
---- x

COQUIS SALES APPLICANCES, LLC, WINDOV/

K[NG, LLC, FRANCESCO, INC, CAPTAINS OF
MORRIS PARK, LLC, MORRIS PARK COMMUNITY
ASSOCIATION, and MARK GJONAJ, in his Official
Capacity as Council Member of the 13th Council District, Index No. 260317/2019
New York City Council,

Petitioners,

-against-

MAYOR V/ILLIAM DEBLASIO, in his Official Capacity

as Mayor of the City of New York, POLLY
TROTTENBERG, In her Official Capacity as
Commissioner, New York City Department of
Transportation, and NIVARDO LOPEZ,In his Official
Capacity as Bronx Borough Commissioner, New York City
Department of Transportation,

Respondents.

RESPONDENTS' MEMORANDUM OF LAW IN OPPOSITION TO THE PETITION

ZACHARY V/. CARTER

Corporation Counsel of the
City of New York
Attorney for Respondents
100 Church Street
New York, New York 10007
Tel (212) 356-2607

SHERYL NEUFELD,
MARK MUSCHENHEIM
YUNGBI JANG,
Of Counsel.

lÙl4:ay 22,2019
 Respondents, WILLIAM DE BLASIO, in his official capacity as Mayor of the

City of New York, POLLY TROTTENBERG, in her official capacity as Commissioner of the

New York City Department of Transportation ("DOT"), and NIVARDO LOPEZ, in his official
capacity as Bronx Borough Commissioner of DOT (collectively, "Respondents"), by their

attorney, ZACHARY W. CARTER, Corporation Counsel of the City of New York, submit this

memorandum of law in opposition to the petition and in opposition to the motion for a

preliminary injunction.

PRELIMINARY STATEMENT

This CPLR Article 78 proceeding stems from dangerous traffic conditions --

rampant speeding, numerous crashes resulting in serious injuries and a fatality -- on Monis Park

Avenue in the Bronx. [n response to this threat to public safety, following months of community

engagement, DOT proposed the Morris Park Avenue Street Improvement Project ("Monis Park

Project"). Rather than supporting this street improvement project, petitioners seek to derail it.

Since DOT had much more than a rational basis - the standard in an Article 78 proceeding -
petitioners' claims fail. Accordingly, the relief sought in the petition as well as in the Order to

Show Cause should be denied.

The Morris Park Project is a traffii calming configuration on the 1.5 mile length

of Morris Park Avenue from Adams Street to Newport Avenue ("Corridor"), the portion of

Morris Park Avenue with the highest concentration of crashes and speeding. Plans to develop a

street improvement project ("SIP") on Morris Park Avenue began as early as 2013 because of the

speeding and traffic crashes along this street. Based on DOT traffic analysis, merchant surveys,

and feedback from the community outreach, the current Morris Park Project plan features a flush

painted center median (meaning no physical barrier will be constructed), left turn bays, bicycle

lanes, and a truck loading zone between Colden Avenue and Paulding Avenue. These proposed

2
features add no physical impediments to the Corridor whatsoever; rather, they are merely

changes in street markings.

The Morris Park Project proposal is a comprehensive plan to address the safety

concerns based on DOT's traffic safety expertise and pursuant to DOT's authority under the New

York City Charter ("City Charter"). As such, the Morris Park Project is a proper exercise of

DOT's broad authority over the functions and operations of transportation in the City, and

especially over matters and requirements essential for traffic and street safety. See City Charter

$ 2903.

Petitioners' claims that the Morris Park Project is improper have no merit. To

start, petitioners claim DOT is not authorizedby legislative authorization or direction. That claim

fails as the street improvement project is a proper exercise of DOT's broad authority under City

Charter $ 2903 over the functions and operations of transportation in the City, and especially

over matters essential for ameliorating traffic conditions which adversely affect the welfare of

the City.

Second, petitioners claim that the Morris Park Project is not based upon

regulatory, administrative, or local law authorization or guidance regarding the process and

procedures to develop and implement this initiative. This claim also fails as the project is

pursuant to DOT's authority under the City Charter $ 2903 and in accordance with

Administrative Code $ 19-101.2

Third, petitioners claim that the Morris Park Project is a "generic traffic diet

proposal." However, the project is based on comprehensive data collection and analysis at the

Conidor, as well as traffic analysis of the Corridor, merchant surveys, and feedback from the

J
community outreach. As a result, of that comprehensive evaluation, the Morris Park Project is

specifically tailored to address the main safety issues identified along the Conidor.

Fourth, petitioners claim that the Morris Park Project does not meet requirements

for implementation of a Vision Zero Initiative because Morris Park Avenue is no longer listed as

a Priority Corridor, a Vision 7.erc geography. However, SIPs are not limited to the listed Priority

Corridors. SIPs are also proposed and implemented in corridors or intersections that have high

rates or severity of crashes. The Conidor is a priority location and remains apt to implement a

SIP, ranking in the top third of conidors for all crashes in the Bronx during the latest five-year

period.

Fifth, petitioners claim that DOT failed to provide reasons behind the changes in

the different versions of the proposal that led to the current Morris Park Project. Setting aside

that such an allegation does not set forth a legal claim, it is clear from the several iterations of the

Morris Park Project that they were based on the comments received during the community

outreach in efforts to find common ground with the community and address their concerns. See
eeg.:' I
LopezAff.g$I 11-19; Answer !Út 79-85; Exhibits "A,""C," "D," and

Lastly, petitioners claim that SIPs have not successfully alleviated traffic and

pedestrian issues and concerns on corridors where they have been implemented. That claim fails.

DOT presented to the community examples of successful SIPs implementation results in the

Allerton and Burke neighborhoods in the Bronx, which are areas that had similar traffic safety

issues and conditions as the Conidor yet achieved positive results once the SIPs were

implemented. See Exhibit "K.'o Il1 fact, DOT has seen significant decrease in crashes in these two

SIPs, and anticipates positive traffic calming results at the Corridor.

Unless otherwise noted, all exhibits referenced herein are annexed to the verified answer
1

4
 Accordingly, the petition should be dismissed in its entirety. For the same

reasons, the preliminary injunction motion should be denied. Petitioners have no likelihood of

success on the merits, their irreparable harm claim is speculative, and the balancing of the

equities - public safety versus purported delivery difficulties - tip decisively in the respondents'

favor

STATEMENT OF RELEVANT FACTS2

Plans to develop a street improvement project on Morris Park Avenue began as

early as 2013 because of the dangerous traffic conditions, rampant speeding, numerous crashes

resulting in serious injuries and a fatality. From 2010-2014. there werc 367 total injuri es, 282

motor vehicle occupant injuries, 14 bicyclist injuries, 71 pedestrian injuries along the Corridor.

'The Court is also respectfully referred to the verified anstver, and the exhibits annexed thereto,
including the following affidavits in opposition to the temporary restraining order, which were
submitted to the Honorable John Higgitt on May 1, 2019, in opposition to the temporary
restraining order, for a statement of detailed facts and the statutory framework:

a Affidavit of Nivardo Lopez, Bronx Borough Commissioner of DOT,

sworn to on May L, 2019 (Lopez Aff.): sets forth the factual
background of the Morris Park Project and the process of the
community outreach process for the Morris Park Project;

a Affidavit of Christopher Brunson, Director of Safety Projects and

Programs for the Office of Research, Implementation and Safety
("RIS") at DOT, sworn to on May l,2019 ("Brunson Aff."): sets forth
the history and purpose of the Vision Zetolnitiative and SIPs, explains
the KSI data, and all considerations that went into the current Morris
Park Project, including the local business sufveys, and public safety
concerns;

o Affidavit of Navjodh Singh, Director of Transportation Analysis for

RIS at DOT and a traffic engineer, sworn to on May 1, 2019 ("Singh
Aff."): sets forth the traffic analysis that was performed for Morris
Park Project and the safety issues identifîed by that analysis that led to
the curuent traffic calming configurations proposed for the Morris Park
Project.

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During this time period, 12 motor vehicle occupants, 1 bicyclist, and 1 pedestrian were killed or

severely injured (*KSI"). From 2013-2017, there were 33J total injuries, 256 motor vehicle

occupant injuries, 11 bicyclist injuries, 70 pedestrian injuries along the Corridor. The KSI was 16

total, which consists of 10 motor vehicle occupant, 1 bicyclist, and 5 pedestrian. Within the last

year, from April 2018 through April 30, 2OI9, there were 82 total injuries recorded -- 10

Pedestrian, 6 Cyclist, 66 motor vehicle occupants. Of these injuries, there was 1 motorcyclist

.fatality,3 motor vehicle occupant severe injuries and I pedestrian severe injury. As of the spring

of 2019,617o of motor vehicles along the Corridor were driving above the speed limit. This is a

large increase from spot speeds taken tn 2l!4where 27Vo ofvehicles traveling on the Corridor

were above the speed limit. See Exhibit "C." From a safety perspective, higher speeds on

corridors usually result in both in more crashes and crashes at a higher severity. See Exhibits

"A" and
t'E."

Beginning in 2017 , DOT performed a data and traffic analysis identifying safety

issues related to speeding, double parking, and left turn pressure, conducted merchant surveys on

the Corridor, and conducted community outreach on numerous occasions where the Morris Park

Project proposal was presented to the community board and elected officials and DOT received

feedback from the community. During the community outreach, four different iterations of the

Morris Park Project were proposed based on the comments received.

The current Morris Project plan, see Exhibit '04," is a comprehensive plan to

address the safety concerns along the Corridor and features a flush painted center median

(meaning no physical banier will be constructed), left turn bays, bicycle lanes, and a truck

loading zone between Colden Avenue and Paulding Avenue.

6
 ARGUMENT

POINT I
THE MORRIS PARK PROJECT IS NEITHER
ARBITRARY NOR CAPRICIOUS, BUT A
PROPER EXERCISE OF DOT'S
DISCRETION.

A. Applicable Standard of Review.

Administrative agencies have broad discretionary power when making

determinations on matters they are empowered to decide. Section 7803 of the CPLR provides

for very limited judicial review of administrative actions. In deciding whether an agency's

determination was arbitrary, capricious, or an abuse of discretion, courts are limited to an

assessment of whether a rational basis exists for the administrative determination. See Heintz v.

Brown, 80 N.Y.2d 998, 1001 (1992) (citing Pell v. Board of Educ., 34 N.Y.2d 222,230-3I

Q9lÐ); Sullivan Count)¡ Harness Racing Ass'n v. Glasser,30 N.Y.2d269,277 (1972); Barton
Trucking Corp. v. O'Connell, 7 N.Y.2d 299,314 (1959); Marsh v. Hanley, 50 A.D.2d 687 (3d

Dep't 1915).

A rational or reasonable basis for an administrative agency determination exists if

there is evidence in the record to support its conclusion. See Sewell v. New York,I82 A.D.zd

469, 473 (lst Dep't 1992). Courts do not review the facts de novo to arrive at an independent

determination. Marsh, 50 A.D.2d at 687; see also Heintz, 80 N.Y.2d at 1001. If the reviewing

court finds the determination is "supported by facts or reasonable inference that can be drawn

from the record and has a rational basis in the law, it must be confirmed." American Tel. &

Telegraph Co. v. State Tax Comm'n, 61 N.Y.2d 393,400 (1984)'

-
7
 B. The Morris Park Proiect satisfies the standard of Review

The City uses tools grounded in existing state and local law to enhance the safety

of our streets. These tools include expanded enforcement against dangerous moving violations

like speeding and failing to yield to pedestrians, broad public outreach and communications and,

safety engineering improvements by way of new street designs and configurations to enhance

safety. Safety engineering improvements include street improvement projects, such as the

Morris Park Project, new traffic signal construction and new street lighting. See Brunson Aff., i[

7.

In fact, pursuant to City Charter $ 2903(a), the Commissioner of DOT has

expansive powers to, inter alia, propose a comprehensive city traffic plan; collect and compile

traffic data and prepare engineering studies and surveys in regard to vehicular and pedestrian

traffic; make recommendations to the mayor in regard to methods of ameliorating traffic

conditions which adversely affect the welfare of the city and which cannot be remedied by traffic

rules and regulations; prepare and submit to the mayor, for consideration and forwarding to the

council, the city planning commission and to other agencies of the city, recommendations and

proposals for the improvement of existing streets, street widening and location of new streets,

avenues, highways and parkways; the location and design of parking garages and parking areas;

the location, type and design of off-street loading and unloading and parking facilities; and other

matters relating to traffic control; and prepare analyses of traffic accidents with a view to

determining their causes and means for their prevention.

The purpose of street improvement projects is always to enhance safety for all

users of the roadway. DOT prioritizes its work on locations that have a history of crashes,

including injuries and fatalities, and/or speeding. See Brunson Aff., 1[ 8. Though SIPs are

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proposed and guided by the Vision 7.ero Pedestrian Safety Action Plan and the Vision Zero

geographies (Priority Areas, Priority Corridors, and Priority Intersections),3 SIPs are also

proposed and implemented in corridors or intersections that have high rates or severity of
crashes, or are requested by community members and elected officials even if they are not

identified as Vision Zero geographies. See id. In identifying areas that have high rates or severity

of crashes, DOT uses KSI data (a.k.a. Killed or Severely Injured) for all of its analysis. See id.,

jllf 10 - 12.

Here, plans to develop a SIP on Morris Park Avenue began as early as 2Ol3

because DOT recognized the consistently high history of speeding and traffic crashes along this

avenue. See Brunson Aff., jt 14. In summer of 2OI7 , DOT added the portion of the street with the

highest concentration of crashes, from Adams Street to Newport Avenue, i.e., the Corridor. The

Corridor is currently a priority location and remains apt to implement a SIP, ranking in the top

third of corridors for all crashes in the Bronx during the latest five-year period. See KSI data and

total number of injuries at the Corridor set forth in the Brunson Aff. gtgt 15-18. Within the last

year, from April 2018 through April 30, 2019, there were 82 total injuries recorded - l0
pedestrian, 6 cyclist, 66 motor vehicle occupants. Of these injuries, there was 1 Motorcyclist

fatality,3 motor vehicle occupant severe injuries and 1 pedestrian severe injury.

3
The City identified Vision Zerc geographies in the 2015 and 2019 Vision Zeto Pedestrian
Safety Action Plan to focus safety interventions where treatments will have the greatest effect.
The methodology used in identifying Vision Zerc geographies that have high rates of crashes (or
severe crashes) is pedestrian KSI data, which stands for pedestrians killed or severely injured per
mile, from the last five available years (2012-2016),

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 As of the spring of 2019, 617o of motor vehicles along the Corridor were driving

above the speed limit. From a safety perspective, higher speeds on corridors usually result in

both in more crashes and crashes at a higher severity. See Exhibits "4" and "8."

To design a proposal tailored for the Morris Park Project, DOT performed

detailed traffic analysis of the Corridor, see generally Singh Aff., and conducted merchant

surveys on the Corridor from February 6 -8,2017 spoke to representatives of 111 businesses,

and collected surveys from 88 businesses, We Brunson Aff., g[[ 20 - 22, and conducted

community outreach on numerous occasions where the Morris Park Project proposal was

presented to the community board and elected officials and DOT received feedback from the

community. See Lopez Aff., i[J[ l0 - 20.

First, based on DOT's comprehensive data collection and analysis, the main

safety issues identified along the Corridor were speeding, double parking, and left turn pressure.

See Singh Aff., ï 11. Thereafter, DOT conducted a traffic analysis with proposed conditions to

address these safety issues and, based on the results of this analysis, recommended a traffic

calming configuration. See id., 9[9[ 14 - 2I. This configuration was revised in response to

community outreach and the current configuration is set forth in the 2Ol9 Corridor Safety
Improvement slides, Exhibit "4." The Morris Park Project proposal is designed to better

organize traffic, reduce speeding, create safer left turns by adding left turn bays, enhance the

bicycle network by installing a bicycle lane in each direction, and minimize double parking on a

retail and residential corridor. See Brunson Aff., i[20.

Second, in addition to this traffic analysis DOT also conducted merchant surveys

on Morris Park Ave from February 6 - 8,2017 to better understand how businesses receive

deliveries and ascertain their delivery needs as a whole. See Exhibit "B" and Brunson Aff.,9[21.

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The team spoke to representatives of 111 businesses available on those days, including those

tiom petitioners Coquis Sales Appliance, LLC, V/indow King LLC, Francesco, Inc / Monis Park

Ave Bake Shop, Captains of Morris Park, LLC / Captain's Pizza and Restaurant. See id. The

team collected surveys from 88 businesses. In these surveys, none of the businesses raised the

issue of loading zones. See generally Exhibit "8." Moreover, DOT did not receive any

objections or comments from the petitioners regarding loading zones in the merchant surveys.

See Brunson Aff.,1122 andExhibit "8."

Third, as set forth in detail in the Lopez Aff., ïï l0 - 20, community outreach was

conducted on numerous occasions where the Morris Park Project proposal was presented to the

community board and elected officials and DOT received feedback from the community. The

DOT Bronx Borough Commissioner Nivardo Lopez also attended meetings with community

groups. See Lopez Aff. jl 10. The main feedback received from the community outreach was that

the Morris Park Project would (i) worsen congestion along the Corridor; (ii) hinder businesses

from receiving deliveries by removing one travel lane in each direction and that the proposed

loading zones would take away parking spaces in front of businesses from customers (iii)

increase the amount of traffic and danger on side streets; and objections to the proposed bike

lanes on the Corridor. See Lopez Aff. 11 11 and Answer t[ 70.

Consequently, based on the comments received during the community outreach,

see Lopez Aff. gtjt lI-I9, different iterations of the Morris Park Project were proposed and

presented. See Lopez Aff. il20; Answer i[[79 - 86; and Exhibits "A," "C," "D," and "E."

There is currently one truck loading zone due to the community resistance to

decrease parking during the community outreach and almost no coÍlmunity comment requesting

additional loading zones. See Answer j[ 81 and Lopez Aff. 1[ 21. Rather, Community Board 11

- 1l -
and Cbuncilman Mark Gjonaj, a petitioner herein, raised a concern that the proposed loading

zones would take parking space away from comrnunity t'esitlull.s and shuppers. See Answer t[ 85.

Additionally, none of the merchant surveys requested truck loading zones. See also Brunson

Aff., q 22. Nevertheless, the one loading zone in the current plan was never intended to be the

only loadin g zone for the Corridor, as is evident from the prior proposals which had more, see

Exhibit "C," "D",and "E" and, in fact, DOT Can change the lOading zone regulations of the

current plan to add more loading zones simultaneously with implementation of project. See

Lopez Aff. 11 22. Notably, loading and unloading of trucks are not limited to this truck loading

zone and businesses can continue to utilize the parking spaces in front of the businesses.

The arbitrary and capricious standard requires only that DOTs Morris Park

Project have a rational basis that is supported by evidence. DOT easily meets that test. Here,

based on traffic analysis of the Corridor, merchant surveys, and community outreach on

numerous occasions, DOT prepared a comprehensive street improvement plan to provide for

safety on Morris Park Avenue, based on DOT's expertise and pursuant to its authority under the

City Charter. See Bruson Aff., fl 27 .The Morris Park Project is a proper exercise of DOT's broad

authority to protect public safety on the streets of the City and should be upheld by this Court.

C. Petitioners'Additional Erroneous Claims that the Morris Park Proiect is Improper

Petitioners take issue with the fact that between the initial proposal and the

current plan, the addition of loading zones went from two to one. During the outreach and

merchant surveys, the community was opposed to taking away parking spots in front of

businesses, and there was almost no community comment requesting additional loading zones.

Nevertheless, as stated previously, DOT is always open to continuing discussion with local

businesses and the community about loading zones and other concerns. See Lopez Aff., ïl22.

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And contrary to petitioners' claim, loading and unloading of trucks are not limited to truck

loading zones and businesses can continue to utilize the parking spaces in front of their

businesses. See Exhibit "4."

Petitioners also claim that the Morris Park Project is a "generic road diet," a

"cookie-cutter" and "one size fits all" approach inappropriate for the Corridor. Petitioners base

their assertion on examples presented by DOT of successful SIPs implementation results at

Allerton and Burke neighborhoods. See F.xhibit "Ko' at slides 4-5; 12-13. These examples were

provided not because the roadways are the same, but because based on the traffic analysis, the

Allerton and Burke SIPs had similar traffic safety issues and existing conditions as the Corridor

yet achieved positive results once the SIPs were implemented. See Lopez Aff.l[23.\n fact, DOT

has seen significant decrease in crashes in these two SIPs, and similarly anticipates positive

traffic calming results at the Corridor. See Exhibit"K' at slides 4-5; I2-I3.

Petitioners next claim that respondents are "ignoring" an ongoing study focusing

on, among other things, traffic and pedestrian safety associated with the MetroNorth and MTA

New York City Transit bus study. They argue that implementation of the Morris Park Project

must be held off until there is a better understanding of the Metro North train station supposedly

due to arrive in the neighborhood and the MTA New York City Transit bus study. Petitioners'

claims are speculative and unfounded. First, Metro North has not confirmed when construction

of a new station will begin nor have they announced an official start date for any new service;

they have only begun their environmental review for a new station. At the earliest Metro North

could begin service in 2023 (at that point traffic matters would be recalculated). Thus, the

proposed station is speculative and would place the Morris Park Project, which is a traffic safety

-13-
plan to address the public safety now, on hold for potentially an indefinite period of time. See

Lopez Aff.l[ 15.

Even assuming there is a station in the near horizon, it is of DOT's professional

opinion that the new station will not drastically increase vehicular traffic volumes nor lead to

traffic congestion along the Conidor because people who normally would drive along the

Corridor would be taking the train. See Lopez Aff. {t 16. Major transit projects generally decrease

not increase - traffic volumes as more people use public transportation. Furthermore, the

Metro North construction is being proposed for the east end of Moruis Park Avenue and, thus, to

the extent there is any increase in traffic congestion, it will not occur on the Corridor where the

Morris Park Project will be implemented. See id. When MTA's environmental review is

complete, if it is anticipated that there will be increase in traffic, the environmental review will

make recommendations to the City regarding any recofiìmended traffic improvements. See id.

With respect to the MTA New York City Transit bus study, the focus of the study

is to make existing routes more efficient. It is also DOT's professional opinion that the Morris

Park Project would not impact MTA's service as buses would still be able to travel on Morris

Park Avenue. DOT has discussed this project with MTA New York City Transit in the context of

their bus study, and both agencies agree that this plan will not affect any future recommendations

for bus service. See Lopez Aff. 9[ 17.

POINT II
PETITIONERS FAIL TO MAKE
THE
SHOWING NECESSARY FOR INJUNCTIVE
RET,IEF

Petitioners are not entitled to injunctive relief as they cannot meet the

prerequisites for obtaining such relief. An injunction is an extraordinary and drastic remedy that

should not be routinely granted, and the party seeking such relief bears a heavy burden of proof.

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See Maclnt)¡re v. Metropolitan Life Ins. Co.. 221 A.D.zd 602 (1st Dept. 1995); Chester Civic

Improvement Ass'n. Inc. v. New York City Transit Authority, t22 A.D.zd 715,717 (1st Dept.

1986). "Because it is a drastic remedy, injunctive relief is reserved for those cases presenting a

clear legal right thereto." East 13th St. Homesteaders' Coalition v. Lower East Side Coalition

Hous. Dev.,230 A.D.2d 622, 623 (Ist Dep't 1996); see also Xerox Corp. v. Neises,3I
^.D.2d
lg5, lg7 (lst Dept. 1963) (preliminary injunctive relief should be granted "with great caution

and only when required by imperative, urgent, or grave necessity, and upon the clearest

evidence, as where the undisputed facts are such that without an injunction a trial will be futile");

accord Chrysler Corp. v. Fedders Corp. ,63 A.D.2d,567,568 (lst Dept. 1978).

A party seeking a preliminary injunction bears the heavy burden of proving each

of the following: (1) that it will suffer irreparable injury if the relief is not granted; (2) the
likelihood of its ultimate success on the merits; and (3) that, on balance, the equities favor

granting the preliminary injunctive relief. State of New York v. Fine, 72 N.Y.2d 967, 968-69

(1938); W.T. Grant Company v. Srogi, 52 N.Y.2d 496,517 (1981); Application of J.O.M. Corp.

v. Department of Health , 173 A.D.2d 153 (1st Dept. I99l); Faberge International. Inc. v. DiPino,

1094.D.2d 235,240 (lstDep't 1985);Basheinv.Landau,96A.D.zd4l9,479 (lstDep't 1983);

Paine & Chriscott v. Blair House Associates,T0 A.D.2d 57I,572 (Ist Dept. 1979). The drastic

remedy of preliminary injunctive relief should not be granted where there is any doubt as to the

movant's entitlement to such relief. Del-ur)¡ v. City of New York,48 A.D.zd 595, 596-97 (Ist

Dept. 1975).

A. Petitioners Fail to Demonstrate that they are Likelv to Prevail on the Merits

Petitioners cannot prevail here as they have no likelihood of success on the merits.

As demonstrated above and in respondents' Verified Answer, the Morris Park Project is neither

arbitrary nor capricious but was rational and reasonable and conformed with the applicable

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statutes, laws, and rules. Also as demonstrated above, petitioners' remaining claims are all

without merit.

B. Petitioners Cannot Demonstrate that Irreparable Harm is Imminent or Certain in

the Absence of Preliminarv Iniunctive Relief

Petitioners failed to demonstrate how implementation of the Morris Park Project

would ineparably harm them. In fact, petitioners' claim of irreparable harm hinges on the

erïoneous proposition that several businesses will be unable to meet their delivery needs because

the one truck loadingzone is too far from their business to ensure adequate delivery of large and

fragile goods, and the designated morning loading and unloading time are too limited to rneet the

various delivery needs. To start, petitioners fail to recognize that unloading and loading is not

limited to the truck loading zone between Colden Avenue and Paulding Avenue. In fact,

businesses can continue to utilize the parking spaces in front of their businesses for their
deliveries. The truck loading zone between Colden and Paulding Avenues was contemplated so

that this zone is always available for any deliveries that occur during the morning hours should

any businesses choose to utilize this zone as opposed to the parking spâcos:

The petitioners' erroneous assumption is further highlighted in the Affidavit of

Nick Ferraro, operator and owner of Window Kng, LLC ("Window King Aff."). He attests that

Window King LLC receives weekly delivery of the between 150 and 200 windows that are hand

carried into the store from the delivery trucks double parked in a lane of traffic on Morris Park

Avenue in front of Window King. He attests that these deliveries always take 3-5 hours.a See

V/indow King Aff. 1[[ 9, 16. He argues that window deliveries via the truck loading zone

between Colden and Paulding Avenues would be untenable and that an unidentified window

4 In fact, he further states that the window delivery trucks do not park on the side road in
consideration of local residents and consumers who would be constrained by alternate side of the
street parking requirements. See Window King Aff. t[ 12.

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supplier indicated that it would no longer deliver to his store if the Moris Park Project is

implemented. Seê id., j[1[ 12 - 23. That claim, relying on an unidentified winclow supplicr is

speculative. Moreover, it defies logic that a supplier providing up to 200 windows per week

would walk away from that business. Bare, conclusory allegations are insufficient to satisfy the

petitioners' burden of demonstrating irreparable injury. See Kaufman v. International Business

Machs. Corp., 97 925, affd. 61 N.Y.2d 930 (1984); LGC USA Holdings. Inc. v. Taly
^.D.zd
Diamonds" LLC , l2I A.D.3d 529,530 (1st Dep't 2014) (As plaintiff failed to submit evidentiary

proof showing a clear right to the relief sought, and in light of the largely speculative assertions

in the affidavit of its president and the fact that they were sharply contradicted by defendants'

affidavits, the Appellate Division denied the preliminary injunction).

Moreover, Window King LLC's current practice of a 3 to 5 hour delivery while

the delivery trucks are double parked in a lane of traffic is illegal. See 34 RCNY $ 4-08(Ð(1).

Illegal activity can hardly be the basis for irreparable harm. 'oOne of the conditions which

petitioner must meet in order to establish its entitlement to a preliminary injunction is a showing

of irreparable harm without the preliminary injunction, and the irreparable harm sustained by

petitioner must be more burdensome than the harm caused to respondents." Public Employees

Federation v. Cuomo ,96 A.D.2d 1118, 1119 (3d Dept. 1983).

C. A Balance of thg Equities Favors the DOT

The equities clearly favor the City. In balancing the equities, a court is required

to consider the public interest. Greenwich Towers Associates v. Mclean" Grove & Co.. Inc., 17

A.D.2d 733 (lst Dep't 1962); Depina v. Educ. Testing Svc., 3I A.D.2d 744, 744 (2d Dept.

1969); International Railway Co. v. Barone,246 App. Div.450 (4th Dept. 1935). In fact, it has

been stated that "the court must consider and attach paramount importance to the public interest

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aspects of the litigation." Metropolitan Transp. Auth. v. Village of Tuckahoe, 67 Misc.Zd 895,

900 (Sup. Ct. Westchester Co. I97I'), aff'd, 38 A.D.2d 570 (2d Dept. 1972).

Here, the injunction sought by petitioners would restrain the DOT from

implementing the Moris Park Project, which is a traffic safety plan to address the public safety

now; holding up this project for an indefinite period of time would be at the expense of public

safety. On the other side of the scale are purported deliver difficùlties. Such purported difficulties

do not outweigh the public safety that will be addressed by the Morris Park Project.

Indeed, there have been fatalities in several SIPs shortly after they were derailed

due to community opposition. See E Tremont Ave, Ericson Pl to Bruckner Blvd SIP and

Amsterdam Ave 110th St - l62nd St SIP, Answer 9[ 87.

POINT III
PURSUANT TO CPLR S 7806, PETITIONERS'
causE oF ACTION FOR COSTS, FEES, AND
ATTORNEYS FEES SHOULD BE
DISMISSED.

Since the petitioners' claims fail, they are not entitled to costs, fees, and attorneys'

fees. See Petition at WHEREFORE clause subsection 5. Further, there is no statutory provision

authorizing recovery of attorney's fees in Article 78 proceedings. See Cosgrove v. Hanson, 58

A.D.2d 911 (3d Dept. 1977); see also Thomashefsky v. Supreme Court,232 A.D.2d572 (2d

Dept. 1996).

While CPLR $$ 8600 - 8605 allow for recovery of attorney's fees in certain

instances in actions and proceedings against the state, no such allowance is made for actions and

proceedings against municipalities. See CPLR $3602(g); Apollon v. Giuliani,246 A.D.2d 130,

135 - 36 (1st Dept. 1998), lv. spp. denied 92 N.Y.2d 1046 (1999); Heights 624 LLC v. New

-18-
York Cit)¡ Hous. Auth.,2012 N.Y. Misc. LEXIS 5740 (N.Y. Sup. Ct.2012); Patalano v. Nassau

County, 30 Misc. 3d 1240(A) (N.Y. Sup. Ct. 2011).

Similarly in Knox v. New York City Dept. of Educ., 100 A.D.3d 486 (1st Dept.

2012), the First Department held that the New York County Supreme Court properly denied the

petitioner's motion for an award for attorney's fees pursuant to Article 86 of the CPLR because

the "respondent [New York City Department of Education] is neither the State nor a state agency

within the meaning of the statute." Knox v. New York Cit]¡ Dept. of Educ., 100 A.D.3d 486 (1st

Dept. 2012). As the First Department explained, "[t]he fact that respondent performs a

governmental function, namely the administration of public education, does not make it an agent

of the State." Id.

CONCLUSION

For the reasons set forth above, this Court should deny the petition and the

preliminary motion, and dismiss the proceeding in its entirety.

Dated: New York, New York

ll4ay 22,2019

ZACHARY W. CARTER
Corporation Counsel of the
City of New York
Attorney for City Respondents
100 Church Street
New York, New York 10007
(2r2) 3s6

BY:
Y
Assi Corporation

-19-
 Case: Coquis Sales Appliances. LLC et al. v. DOT et al.
Index No. 2ó0317/2019

Affirmation of Service bv Electronic Mail

YUNGBI JANG, an attorney admitted to practice before the Courts of the State

of New York, affirms, pursuant to CPLR $ 2106 and subject to penalties of perjury, that on May

22, 2Ol9 I served the foregoing MEMORANDUM OF LA\4/ IN OPPOSITION TO THE

PETITION AND IN OPPOSITION TO MOTION FOR A PRELIMINARY INJUNCTION upon

petitioner's counsel,

John L. Parker
parkerjl@icloud.com

by electronically transmitting a PDF of said document by electronic mail to the e-mail address

set forth above, designated by counsei for that purpose.

Dated: New York, New York

lllay 23,2019

YUNGBI J