Motion for Substituted Service in Onedol Rock Holdings Lp v. The Village Of Scarsdale, The Village Of Scarsdale Committee For Historic Preservation, The Village Of Scarsdale Board Of Trustees| Trellis.Law

On April 07, 2021 a Notice of Appeal was filed involving a dispute between Onedol Rock Holdings Lp, and The Village Of Scarsdale, The Village Of Scarsdale Board Of Trustees, The Village Of Scarsdale Committee For Historic Preservation, for Special Proceedings - CPLR Article 78 in the District Court of Westchester County.

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FILED: WESTCHESTER COUNTY CLERK 03/15/2022 08:19 AM INDEX NO. 54241/2021
NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 03/15/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
In the Matter of the Application of

ONEDOL ROCK HOLDINGS LP, NOTICE OF APPEAL

Petitioner-Plaintiff,
Index No. 54241/2021

For a Judgment and Order pursuant to Article 78 of the CPLR
and for declaratory relief,

-against-

THE VILLAGE OF SCARSDALE, THE VILLAGE OF
SCARSDALE COMMITTEE FOR HISTORIC
PRESERVATION and THE VILLAGE OF SCARSDALE
BOARD OF TRUSTEES,

Respondents-Defendants.

PLEASE TAKE NOTICE that the Respondent-Defendant Village of Scarsdale Committee

for Historic Preservation hereby appeals to the Appellate Division of the Supreme Court of the

State of New York, Second Judicial Department, from the Decision Order & Judgment of the

Supreme Court, Westchester County (Cacace, A.S.C.J.), dated February 15, 2022 and signed by

the Westchester County Clerk on February 16, 2022 and filed and entered on the records of the

Westchester County Clerk on February 17, 2022.

Dated: White Plains, New York
March 15, 2022

Yours, etc.

McCullough Goldberger & Staudt, LLP

Patricia Wetmore Gurahian
1311 Mamaroneck Avenue, Suite 340
White Plains, New York 10605
Phone: (914) 949-6400
pgurahian@mgslawyers.com
Attorneys for Respondent Village of Scarsdale
Committee for Historic Preservation

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TO: Troy D. Lipp, Esq.

Cuddy & Feder, LLP

445 Hamilton Avenue, 14th Floor

White Plains, New York 10601
Phone: (914) 761-1300

tlipp@cuddyfeder.com

Attorneys for Petitioner

Daniel Pozin, Esq.

McCarthy Fingar, LLP
711 Westchester Avenue, Suite 405

White Plains, New York 10604

Phone: (914) 946-3700
Email: dpozin@mecarthyfingar.com

Attorneys for Respondent The Village of Scarsdale

and the Village of Scarsdale Board of Trustees

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SUPREME CC URT OF THE STATE OF NEW YOT.K
COUNTY OF WESTCHESTER
-.---..,,....-----------..--------Ç
In theMatter of the Application of
ONEDEL ROCK HOLDINOS LP,

Petitioner,
DECISION
ORDER and JUDOMENT

- against -
Index No. 54241/2 I

THE VILLAGE OF SCARSDALE, THE VILL AGE
OF SCARSDALE COMMITTEE FOR HISTORIC
PRESERVATION and THE VILLAGE OF
SCAR8DALE BOARD OF TRUSTEES,

Respondents.
-.---..-..___.----.-------------X
CACACE, J.

The following papers, numbered one (1)through eleven (Il),were read upon
consideration of thispetition forreliefpursuant toarticle78 of the Civil PracticeLaw and Rules
(CPLR).

Notice of Petition - Summons - Affirmation in Support with Exhibit .. . 1
. . . . . . . . . ....
Verified Petition and Complaint with Exhibit . . . . . . . . . ..
..... . . . . . . . . . . . . ..
. ... 2
Memorandum of Law in Support . . . . . . . . . . . .........
. . . . . . . ..
. . . . . ........ . . 3
Verified Answer - Affidavit- Record ofProceedings . ...... . . . . . . ....
. .. .4
. . . . . ..
Memorandum of Law in Opposition toPetition .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
Verified Answer.. . . . . . . . . . . ...........
. . . . . , ..,....... .. . 6
. . . ...
. . . . . . ...
Memorandum of Law in Opposition to Petition.. . . . . . . . . . . ......
. . . . . . . .. 7
. . . ..
Supplemental Memorandum of Law in Support of Petition . . . ..
. . . . . . . . . ......... 8
Supplemental Memorandum of Law in Opposition to Petition ..... .. . . . . . . . . . . . . .. 9
Memorandum of Law in Opposition to Petition . . . . . . . . . . .
. . . . . . . . . . . . . . . . . ... 10
Memorandum of Law in Support of Petition.. . . . . . . . ... . . . . . . . . . . . . I I
. . . ..
Reply

Upon the papers, itisdecided, ordered and adjudged that theinstant petitionis
foregoing

addressed as follows:

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Procedural History

The petitionerbrings thishybrid proceeding for both a judgment pursuant to 78
article of

the CPLR, and declaratory reliefpursuant to CPLR 3001, by a verified petitionwhich seeks an

order of thisCourt in theform of (1)a judgment overturning, vacating and annulling the

determination made the respondent Searsdale Village Board of Trustees (BOT) to deny the
by

petitioner'sappeal the challenged determination) thathad been taken from the
(hereinafter,

earlierdetermination made the respondent Village of Searsdale Committee for Historic
by

Preservation to the petitioner'sapplication fora Certificate of Appropriateness
(CHP) deny

to the proposed demolition of theexisting residentialstructurelocated at 11
(COA) relating

Village of Scarsdale (hereinafter,the main house), upon argument that the
Dolma Road in the

was capricious and reflected an abuse of discretion, and (2) a
challenged determination arbitrary,

Scarsdale Village Code as contained within Chapter 182 of the Village
declaration that § 182-5,

Village of Scarsdale the Code), entitled "Historic Preservation", is
Code of the (hereinafter,

faceand as applied to thepetitioner,as itprovides vague and overbroad
unconstitutional on its

historical preservation of real - incident to an ultimate
requirements for the property

- inviolationof the petitioner'sright to due process under
determination of a COA application

Constitution and the New York State Constitution, thereupon granting the
the United States

the respondents BOT and CHP to
petitioner'sCOA application, or attematively, compelling

grant thepetitioner's COA application.

theinstant verified petition,respondent CHP fileda verifiedanswer
In opposition to

raised several objections in point of law that reflectchallenges to the
through which it

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petitioner's claims of entitlement to reliefand further raiseseveral affirmative defenses,

including (1) thatthe petitionerhas failed to establishthatthe respondent BOT's challenged

determination was inconsistent with applicable and relevant precedent, (2) that§ 182-5 of the

Code isconstitutional on itsface, as itisrationally relatedto a legitimate governmental purpose,

that 182-5 of the Code isconstitutional as appliedto thepetitioner, as the challenged
(3) §

determination does not deprive the petitionerof theright to make reasonable use of the 11

Dolma Road property in spiteof the respondent BOT's denial of the petitioner'sCOA

application for and that 182-5 of theCode isconstitutional in themanner ithas been
same, (4) §

applied to the as the respondent BOT afforded the petitioner itssubstantive and
petitioner,

procedural due process rights that thepetitionerwas provided with a fulland fair
by ensuring

and argument in support of itsCOA application for themain
opportunity to presentevidence

house sitedupon the 11 Dolma Road property.

instantverifiedpetition,the respondents BOT and Village of
In furtheropposition to the

Village fileda verified answer through which they
Searsdale (hereinafter,the respondents) jointly

of law and affirmativedefenses that challenge the petitioner's
raised several objections in point

that the petitionerincorrectly submits thatthe
claims of entitlement to relief
by arguing (1)

substantial rather than the appropriate standard of
applicable standard of review is evidence,

whether the challenged determination was made in
review which requires the Court to ascertain

aiTected an error of law, was arbitraryand capricious, or
violation of lawful procedure, was by

CPLR that the petitionerhas failed to
constituted an abuse ofdiscretion pursuant to 7803(3), (2)

challenged determination was inconsistent with applicable
establish thatthe respondent BOT's

thatthe challenged determination was properly based upon the
and relevant precedent, (3)

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respondent BOT's de novo review of the COA
petitioner's application for thesubject property,

and (4) that § 182-5 of the Code isconstitutional on itsface and as applied to thepetitioner,as

the respondent BOT afforded the petitioneritssubstantive and procedural due process rights by

ensuring that thepetitioner was provided with fairnoticeof itsstatutory requirements and a full

and fair
opportunity to present evidence and argument insupport itsCOA application forthe

main house sited upon the 11 Dolma Road property.

Factual Findings

The petitioneristhe owner of a 3.26 acreparcel of realproperty located at I 1 Dolma

Road in the Villageof Scarsdale, New York, further identifiedas Section 13, Block 1, Lot 13E

on the Tax Assessment of theVillage of Searsdale, which isimproved by a single-family
Map

residence thatwas designed architectJulius Gregory and constructed by Walter J. Collet in
by

as well as an pool house structure and an in-ground pool (hereinafter,the subject
1928, accessory

property). After the deed to the subject property in 2019, the petitionersubmitted an
acquiring

application for a COA with the respondent CHP on June 2,2020, as required by Chapter 182 of

the Code which isentitled "Historic Preservation", which the petitionersought approval for
by

the demolition of the main house sitedupon the subject property incident to theplanned

construction of a new single-family residence thereupon (hereinafter, the COA application).

182-4 of the Code provides that a Searsdale property owner must obtain a COA
Specifically, §

from the CHP prior to structure which the Village of Searsdale Building
demolishing any

Inspector has identified as a potentialhistoricbuilding, whereas § 182-5 of the Code provides

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that theCHP's determination of a COA application must be based upon itsconsideration of the

structure's "significance in American history,architecture,archeology, engineering and
existing

culture present in the as well as the integrityof location,design, setting,materials and
building,

in addition to its thatone ormore of the following qualifications are
workmanship", finding

applicable to the existing structure:

[t]hatthe isassociated with events thathave made a significant
(1) building
contribution to broad patterns of Village,regional, stateor nationalhistory; or

[t]hatthe isassociated with the lifeora person orpersons of
(2) building
historicalsignificance; or
[t]hatthe building isthe work of a master; or
(3)
[t]hatthe embodies the distinctivecharacteristicsof a type,period
(4) building
or method of construction thatpossesses high artisticvalue; or
has yielded or be to yieldinformation important
(5) [t]hatthe building may likely
in prehistory or history.

submission of theCOA application, the respondent CHP
In response to thepetitioner's

same on June 2020, when the petitionerproffered the
conducted its public
first hearing upon 30,

agents and an anticipated resident of thenew house he
comments of Steven Binetter, one of its

as well as thecomments and written report
plans to construct upon the subject property,

Ph.D., Senior Architectural Historian at Paulus,
submitted by Dr. Emily T. Cooperman, M.S.,

FirstCooperman Report), as an expert in theareas
Sokolowski and Sarter,LLC (hereinafter,the

as well as historiepreservation and cultural resource
of architectural and landscape history,

Mr. Bineuer firstaddressed the respondent
management. In support of the COA application,

seek the demolition of the main house due to the
CHP and related that he and his family

toaccommodate the particularambulatory challenges presented
unsuitabilityof itsconfiguration

In furthersupport of theCOA application, Dr. Cooperman
his young son's special needs.
by

her learned opinion thatthe main house could no
addressed the respondent CHP and offered

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longer be considered a historic within the meaning of Chapter 182 of the Code,
building

that heropinion was based upon her recognition of thesignificant physical design
revealing

alterationsand renovations that had been performed upon the main house since ithad been

the removal of a single-window dormer and the replacement of same with a newly
including

constructed wall dormer on the west side of theexisting house in 1941, the additionof a bay

window to thecenter registerof the south side ofthe existing house in 1946, and the more scent

alterationsbetween 1995 and 2004 which included the construction of a two-story addition to the

east sideof the house with a cylindrical sunroom and an elevated terrace,the
existing

of a new second with a historicallyoversized chimney, reconfigured walls and
construction story

relocated and/or replaced leaded-glass windows throughout, the alteration
garage door openings,

design on the north side of the house, the alterationof the frontentry
of the masonry existing

and relocation of the doors, the elimination of the
with an added door hood projection entry

shed- roofed volume on the northernmost end of the existing structureby
originalsingle story

the replacement of the window sashes and interiordoors,
replacement with gable-roofed volume,

subject of a poolhouse and in-ground pool. Upon her
and the addition to the property

alterationsand additions to themain house, Dr. Cooperman
consideration of these extensive

to the originalstructurehad altered and/or removed substantial
concluded thatsuch changes

volumetric organization to theextent that themain house
aspects of itshistoricappearance and

within the of Chapter 182 of the Code.
could no longer be considered a historicbuilding meaning

offered Dr. Cooperman in relianceupon the significant
Aside from the opinion by

themain house over the 92 years, she furthersupported
alterationsand renovations to preceding

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her conclusion thatthe main house could not be considered a historicbuilding under the Code

through her research-based findings revealing thatthere was no known evidence indicating that

eitherthe main house had been associated with an event that made a significanthistorical

contribution as provided in 182-5(A)(1) of theCode, thatthe main house had been owned
§

and/or occupied person of historicalimportance as provided in § 182-5(A)(2) of theCode,
by any

or thatthe main house had yielded or was likelyto yieldimportant historical information as

provided in 182-5(A)(5) of the Code. In further support of her opinion thatthe main house was
§

not a historic under the Code, Dr. Cooperman presented the respondent CHP with a
building

detailedanalysis of her research-based findings that leadher to conclude thatthe architectof the

"master" of the
main bouse, Julius Gregory, was not a architect as provided in § I82-5(A)(3)

and that the significantalterations and additions to themain house over the years have
Code,

undermined the distinctive characteristicsof hisoriginal aesthetic idealsand English Norman

design concepts to a point thatit no longer can be viewed as a structureof high
English style

which expresses those ideals and design concepts more fullythan other houses of
artisticvalue

in of the Code. In thisregard, Dr. Cooperman supplemented
itstype as provided § I82-5(A)(4)

with repeated references to theFi nt Cooperman Report thatshe prepared and
her presentation

the public which included a multitude of photographs of the main
fumished priorto hearing,

taken prior to the extensive renovations and alterationsof same, and subsequent
house that were

respondent CHP received written submissions presented on behalf of the
thereto. In addition, the

lettersfrom the petitioner'scounsel dated June 2, 2020 and June 29, 2020
petitioner,including

in conjunction with a muhitude of exhibitsand enclosures, as wellas a
that had been submitted

the adjacent owner at 7 Dolma Road, who had urged the CHP to
letterfrom property residing

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approve the petitioner'sCOA application to permit the demolition of the main house sited upon

the subject property.

Following the petitioner'spresentation of thecomments of Dr. Cooperman and Mr.

Binetter,and the distribution of the FirstCooperman Report to therespondent CHP's members,

the respondent CHP advised that it
had sua sponte retained Andrew Scott Dolkart, Professor of

Historic Preservation at Columbia University School of Architecture, to prepare a written

assessment of the subjectproperty in relation
to thepetitioner's COA application which he had

completed on or about June 26, 2020 (hereinafter,the FirstDolkart Report). Although the First

Dolkart Report represents a three-page document drafted ina single-spaced letterformat, merely

one sentence thereof addressed the extensive alterationsand additions to themain house which

were detailed in theFirst Cooperman Report. Specifically,Mr. Dolkart's comment on the

physical changes to theoriginal design and appearance of themain house was limitedto his

characterization of same as a "few minor alterationsto theexterior of thehouse", and his offered

opinion that"none appears to have had an impact of [sic]the architectural integrityof the

structure". As allof theCHP's members had not yet conducted a sitevisitregarding the subject

property when the publichearing of June 30, 2020 was held, the respondent CHP adjoumed the

public upon the petitioner'sCOA application until September 29, 2020, in order to afford
hearing

itsmembers the further to conduct a sitevisitand to enable the petitionerto review
opportunity

the FirstDolkart Report.

Thereafter, the petitioner'sreview of the FirstDotkart Report, Dr. Cooperman
following

prepared a supplemental reportfor submission to theCHP that was dated August 20, 2021

(hereinafter,the Second Cooperman Report), which the petitioner presented to therespondent

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CHP in conjunction with a so-called Supplemental Submission on August 2020,
21,

Specifically,through the Second Cooperman Report, Dr. Cooperman focused her comments

primarily upon the basisfor her disagreement with the FirstDolkart Report's discussion and

opinion of JuliusGregory's standing in theannals of architecturalhistory,as Dr. Coopennan

submitted her analysis of the absence of a basisupon which Julius could be considered a
Gregory

figure of generally recognized greatness as a master architect.In addition, Dr. Cooperman

repeated her earlier references and reiteratedher impressions the substantialalterations
regarding

to many exterior featuresof the main house as thebasis for her conclusion that it
could no longer

be considered the expression of an aesthetic idealin itsvolumetric organization, or initsexterior

presentation.

in apparent response to theSecond Cooperman Report, Mr. Dolkart prepared a

supplemental report on behalf of therespondent CHP, which he dated September 12,2020 and

entitled Revised and Expanded Preservation Assessment (hereinaAer, the Second Dolkart

Report), wherein he supplemented and enhanced his earlierargument thatJulius Gregory was a

master architectwithin the meaning of § 182-5(A)(3) of theCode, and wherein he claimed anew

thatthe main residence was associatedwith persons of historicalsignificance within the meaning

of § I82-5(A)(2) of the Code based upon the wealth of itsoriginalowner, W. Wallace Lyon, and

upon the professional reputations of itsbuilder,Walter Collet,and itsarchitect, JuliusGregory.

In directresponse to thewritten submission prepared forthe CHP by Ann Gregory

Cefola, in hercapacity as the granddaughter of JuliusGregory, Dr. Cooperman prepared another

supplemental response forsubmission to theCHP on behalf of thepetitioner,dated September

14,2020, through which she sought to assuage the disappointment thatMs. Cefola's written

.9.

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submission expressed with regard to Dr. Cooperman's previously presented argument thatJulius

did not the objective criteriaor otherwise enjoy a professional reputation which
Gregory satisfy

Case Info

Judge

Susan Cacace Track Judge’s New Case

Case No.

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Document Filed Date

March 15, 2022

Case Filing Date

April 07, 2021

County

Parties

GURAHIAN, PATRICIA W Attorney for the Defendant
LIPP, TROY DAVID Attorney for the Plaintiff
ONEDOL ROCK HOLDINGS LP Plaintiff
POZIN, DANIEL Attorney for the Defendant
SCHRIEVER, ANDREW P. Attorney for the Plaintiff
THE VILLAGE OF SCARSDALE Defendant
THE VILLAGE OF SCARSDALE BOARD OF TRUSTEES Defendant
THE VILLAGE OF SCARSDALE COMMITTEE FOR HISTORIC PRESERVATION Defendant
KRISTEN MOTEL Attorney
LESTER STEINMAN Attorneys for Plaintiffs
Andrew Pennacchia Attorneys for Plaintiffs
KEMPSHALL MCANDREW Attorneys for Plaintiffs
TERRY RICE Attorney
DAVID BALL Attorney
JAMES STAUDT Attorney
RICHARD SANDOR Attorney
ANNA GEORGIOU Attorneys for Defendants

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Notice of Appeal: Onedol Rock Holdings Lp v. The Village Of Scarsdale, The Village Of Scarsdale Committee For Historic Preservation, The Village Of Scarsdale Board Of Trustees

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