Preview
FILED: NEW YORK COUNTY CLERK 05/17/2023 12:13 PM INDEX NO. 451121/2023
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/17/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------x
In
- the Matter of the Application of THE CITY :
OF NEW YORK, : Index No: 451121/2023
Petitioner, : (Hagler, J.S.C.)
:
To Acquire by Exercise of its Powers of :
Eminent Domain, Fee Interests in Certain Real :
Property Known as Tax Block 708, Lot 48; and : 528-534 WEST 39 L.L.C’s
Fee Interests and a Temporary Easement in Tax : VERIFIED ANSWER TO
Block 710, Lot 11; all Located in the Borough : PETITION
of Manhattan, Required as Part of the :
:
HUDSON PARK AND BOULEVARD :
PROJECT, PHASE 2, STAGE 3. :
:
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- 528-534 West 39 L.L.C. (hereinafter referred
d to as “Lot 11 Respondent”), by and through
its attorneys, Pillsbury Winthrop Shaw Pittman LLP,
yy hereby sets forth the following Answer to
the Verified Petition dated April 19, 2023 (NYSCEF Doc. No. 1) (hereinafter referred to as the
“Petition”). Any allegation, averment, contention, or statement in the Petition not admitted is
denied. Lot 11 Respondent responds to each of the paragraphs of the Petition as follows:
1. [Pursuant to Sections 8 and 381 of the New York City Charter (the
“Charter”), the City is authorized to acquire title in fee to real property or
any interest therein required for public use.]
Paragraph 1 of the Petition contains legal conclusions to which no response is
required; to the extent a response is required, Lot 11 Respondent denies knowledge or
information sufficient to form a belief as to the truth of the allegations in Paragraph 1 of the
Petition.
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2. [Pursuant to Sections 197-c and 197-d of the Charter, the acquisition of
the real property interests described below was approved by the City
Planning Commission on November 22, 2004, and by the City Council on
January 19, 2005 (Resolution Nos. 759 and 782 through 791).]
Paragraph 2 of the Petition contains legal conclusions to which no response is
required; to the extent a response is required, Lot 11 Respondent denies knowledge or
information sufficient to form a belief as to the truth of the allegations in Paragraph 2 of the
Petition.
3. [Hudson Park and Boulevard is an approximately 4-acre system of tree-lined
parks and open space planned to run between 10th and 11th Avenues from
West 33rd to West 39th Streets. The first phase of the Park and Boulevard was
completed in 2015 and is located between West 33rd and West 36th Streets,
and has been renamed Bella Abzug Park. Phase 2 of the Hudson Park and
Boulevard system (the “Project”) will extend the Park north, from West 36th
to West 39th Streets. The Project will also extend the Boulevard north from
West 36th to West 38th Streets.]
Lot 11 Respondent denies the characterization of the Hudson Park and Boulevard as a
single project comprising two phases. Lot 11 Respondent otherwise denies knowledge or
information sufficient to form a belief as to the truth of the allegations in Paragraph 3 of the
Petition.
4. [The completed Hudson Park and Boulevard is a fundamental element of the
new Hudson Yards district, which would continue to bring light to the mid-
block areas and assist with pedestrian and vehicular circulation.]
Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 4 of the Petition.
5. [The Hudson Park and Boulevard is part of the No. 7 Subway Extension -
Hudson Yards Rezoning and Development Program, which is a collaborative
effort involving the City, the Metropolitan Transportation Authority
(“MTA”), and numerous City and State agencies for, among other things, a
rezoning affecting over 300 acres on the Far West Side of Midtown
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Manhattan, an improved transit system, new parkland and a new mid-block
boulevard system. This comprehensive and interrelated zoning and transit
improvement Project was designed to accommodate additional commercial,
residential and retail development over several decades.]
Lot 11 Respondent denies the characterization of the Hudson Park and Boulevard as a
single project comprising two phases. Lot 11 Respondent otherwise denies knowledge or
information sufficient to form a belief as to the truth of the allegations in Paragraph 5 of the
Petition.
6. [On April 30, 2019, a duly noticed joint public hearing by the City was held, in
accordance with the provisions of Article 2 of the New York State Eminent
Domain Procedure Law (“EDPL”), regarding the Project.]
Lot 11 Respondent admits that such hearing was held. Paragraph 6 of the Petition
otherwise contains legal conclusions to which no response is required; to the extent a response
is required, Lot 11 Respondent denies knowledge or information sufficient to form a belief as
to the truth of the allegations in Paragraph 6 of the Petition.
7. [At that hearing, a representative of the Hudson Yards Development
Corporation presented information to the public concerning the public use,
benefits, and purposes to be served by the proposed acquisitions for the
Project, the reasons that the real property interests were proposed to be
acquired, and the general effect of the proposed acquisitions on the
environment and residents of the locality.]
Lot 11 Respondent admits that such hearing was held. Lot 11 Respondent otherwise
denies knowledge or information sufficient to form a belief as to the truth of the allegations in
Paragraph 7 of the Petition.
8. [In addition, copies of acquisition maps showing the specific locations and
dimensions of the property interests to be acquired by the City for the Project
were displayed at the hearing and made available upon request.]
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Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 8 of the Petition.
9. [Representatives of the City (including the Department of Citywide
Administrative Services) were present at that April 30, 2019 public hearing
and were given the transcript of that hearing and the written comments
subsequently submitted.]
Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 9 of the Petition.
10. [The record of the hearing was closed on May 21, 2019 at 5:00 p.m. All
testimony and written comments received at the hearing or by May 21, 2019 at
5:00 p.m., and all materials made available at the hearing, were reviewed,
made a part of the record, and afforded full consideration.]
Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 10 of the Petition.
11. [Notices of the public hearing, copies of which notice are annexed hereto (with
proofs of publication) as Exhibit A, were duly published in five successive
issues of the New York Post on April 1, 2, 3, 4 and 5, 2019 and in five
successive issues of The City Record on April 1, 2, 3, 4 and 5, 2019.]
To the extent Paragraph 11 cites to or is based on one or more written documents, Lot 11
Respondent respectfully refers the Court to those documents for their full and complete contents.
Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of
the allegations in Paragraph 11 of the Petition.
12. In addition to such publications, the City mailed copies of the notice of public
hearing, by certified mail, return receipt requested, to all assessment record
billing owners, as well as to all persons known to the City who might have an
interest in one or more of the parcels to be acquired. Further, on April 19,
2019, the City caused six copies of the notice of public hearing to be posted
within the Project area.]
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Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 12 of the Petition, except to admit that it received copies
of such notice.
13. [On August 8, 2019, pursuant to Section 204 of the EDPL, and based upon the
record of the hearing and having given due consideration to the comments of
the public, the City made the requisite determination and findings concerning
the City’s proposed acquisitions of certain real property, including the
property interests that are the subject of this Petition. The City’s
determination and findings was duly published in both The City Record and
the New York Post on August 15 and 16, 2019. A copy of the determination
and findings (with proofs of publication) is annexed hereto as Exhibit B.]
To the extent Paragraph 13 cites to or is based on one or more written documents, Lot
11 Respondent respectfully refers the Court to those documents for their full and complete
contents. Paragraph 13 of the Petition also contains legal conclusions to which no response is
required; to the extent a response is required, Lot 11 Respondent denies knowledge or
information sufficient to form a belief as to the truth of the allegations in Paragraph 13 of the
Petition.
14. [On August 15, 2019, a true and complete copy of the City’s determination and
findings was mailed by certified mail, return receipt requested, to each
assessment record billing owner or his or her attorney of record whose
property may be acquired, and others who may have an interest in such
property and who were known to the City. Additional mailings of true and
complete copies of the City’s determination and findings occurred on August
22, 26, 27, 28, and 29, 2019, and September 4, 2019.]
Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 14 of the Petition, except to admit that it received copies of
such notice.
15. [On May 24, 2022, the City commenced its first Phase 2 proceeding, identified
as the Phase 2, Stage 1 proceeding (New York County Supreme Court Index
No. 451619/2022), to acquire a portion of Manhattan Tax Block 708, Lot 20
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(the “Stage 1 Parcel”) in connection with the Project. By Order dated July 26,
2022, and duly entered in the office of the Clerk of the County of New York on
July 27, 2022, this Court granted the City’s Phase 2, Stage 1 petition. Title to
the Stage 1 Parcel vested in the City on August 9, 2022.]
Lot 11 Respondent denies the characterization of the Hudson Park and Boulevard as a
single project comprising two phases. Lot 11 Respondent otherwise denies knowledge or
information sufficient to form a belief as to the truth of the allegations in Paragraph 15 of the
Petition.
16. [The Stage 3 acquisitions that are the subject of this proceeding are for the
purpose of extending Bella Abzug Park and Hudson Boulevard. The Park is to
be extended from West 36th to West 39th Streets and the Boulevard is to be
extended from West 36th to West 38th Streets. When complete, the mid-block
park will run from 33rd to 39th Street and Hudson Boulevard will run from
33rd to 38th Street, between 10th and 11th Avenues.]
Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 16 of the Petition.
17. [The real property to be acquired in fee simple absolute by the City in this
proceeding, but subject to paragraphs 23 through 27 below, is as follows: (a)
Tax Block 708, Lot 48 (Damage Parcel 1); and (b) portions of Tax Block 710,
Lot 11 located within the Phase 2 Hudson Boulevard and Park (as that term is
defined in the NYC Zoning Resolution) (Damage Parcels 2 and 3) (collectively,
the “Stage 3 Fee Acquisition Parcels”). The Stage 3 Fee Acquisition Parcels are
described by metes and bounds on Schedule A, attached hereto. The City’s
acquisition of the Stage 3 Fee Acquisition Parcels shall include the acquisition
of any improvements that are located on the Stage 3 Fee Acquisition Parcels
but that extend beyond any property line of such Stage 3 Fee Acquisition
Parcels.]
Lot 11 Respondent admits that Schedule A reflects the metes and bounds of the portion
of the property located at Block 710, Lot 11 that the City had previously indicated would be
acquired in fee simple absolute. Lot 11 Respondent denies the characterization of the Hudson
Park and Boulevard as a single project comprising two phases. Lot 11 Respondent otherwise
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denies knowledge or information sufficient to form a belief as to the truth of the allegations in
Paragraph 17 of the Petition.
18. [The real property in which a temporary easement is to be acquired by the
City in this proceeding is the portion of Tax Block 710, Lot 11 that is not being
acquired in fee simple absolute (westerly portion) and that is located outside
the Phase 2 Hudson Boulevard and Park (Damage Parcel 4) (the “Temporary
Easement Parcel,” which together with the Stage 3 Fee Acquisition Parcels
shall be referred to herein as the “Stage 3 Acquisition Parcels”). The
Temporary Easement Parcel is described by metes and bounds on Schedule A,
attached hereto.]
Lot 11 Respondent admits that Schedule A reflects the metes and bounds of the portion
of the property located at Block 710, Lot 11 that the City had previously indicated would be
acquired for a temporary easement. Lot 11 Respondent denies the characterization of the
Hudson Park and Boulevard as a single project comprising two phases. Lot 11 Respondent
otherwise denies knowledge or information sufficient to form a belief as to the truth of the
allegations in Paragraph 18 of the Petition but states that such easement does not diminish the
enhanced value of the property conferred by the Hudson Yards Rezoning and Development
Program and attributable to the City’s special demand for the property.
19. [The time during which the Temporary Easement Parcel will be taken is five
years, measured from the date of the acquisition of such interest.]
Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 19 of the Petition but states that such easement does not
diminish the enhanced value of the property conferred by the Hudson Yards Rezoning and
Development Program and attributable to the City’s special demand for the property.
20. [The City’s acquisition of the temporary easement over the Temporary
Easement Parcel shall give the City the right to (i) demolish and remove the
building currently on Block 710, Lot 11, including any foundations, footings
and the like that are located below grade, and including any portions of the
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building that may extend beyond any property line of Block 710, Lot 11 (the
“Building”), (ii) fill any subgrade area of the Temporary Easement Parcel that
had been occupied by a portion of the Building so that the entire Temporary
Easement Parcel is at grade level; and (iii) use the Temporary Easement Parcel
for construction staging purposes related to the construction of Phase 2 of
Bella Abzug Park and Hudson Boulevard.]
Lot 11 Respondent denies the characterization of the Hudson Park and Boulevard as
a single project comprising two phases. Paragraph 20 of the Petition contains legal
conclusions to which no response is required; to the extent a response is required, Lot 11
Respondent denies knowledge or information sufficient to form a belief as to the truth of the
allegations in Paragraph 20 of the Petition but states that such easement does not diminish
the enhanced value of the property conferred by the Hudson Yards Rezoning and
Development Program and attributable to the City’s special demand for the property.
21. [Other than as may be necessary to demolish and remove the Building, the
temporary easement shall not give the City the right to excavate the
Temporary Easement Parcel.]
Paragraph 21 of the Petition contains legal conclusions to which no response is
required; to the extent a response is required, Lot 11 Respondent denies knowledge or
information sufficient to form a belief as to the truth of the allegations in Paragraph 21 of the
Petition but states that such easement does not diminish the enhanced value of the property
conferred by the Hudson Yards Rezoning and Development Program and attributable to the
City’s special demand for the property
22. [At the conclusion of the easement term, the City shall return the Temporary
Easement Parcel, except that the Building shall have been removed, and with
respect to any subgrade area that the City fills during the term of the
easement, the City shall return such area with the fill in place and with the
Temporary Easement Parcel at the level of the adjacent street curb.]
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Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 22 of the Petition but states that such easement does not
diminish the enhanced value of the property conferred by the Hudson Yards Rezoning and
Development Program and attributable to the City’s special demand for the property.
23. [The City’s acquisition of interests in Tax Block 710, Lot 11 shall not include
the acquisition of any development rights based on “floor area” (as the term
“floor area” is defined in Section 12-10 of the NYC Zoning Resolution)
(“Zoning Floor Area” or “ZFA”) associated with the areas of Damage Parcels
2 and 3 (located within Hudson Park & Boulevard), which development rights
shall remain the property of the current owner of those areas, which upon
information and belief is 528-534 West 39 LLC (such entity, or the actual
owner of Tax Block 710, Lot 11, if 528-534 West 39 LLC is not the owner, the
“Owner”). Upon the City’s acquisition of Damage Parcels 2 and 3, the legal
right of the Owner to use such +/- 22,925 square feet of Zoning Floor Area on
the remaining portion of Tax Block 710, Lot 11 (the “Lot 11 Remainder”) (or
any larger zoning lot of which the Lot 11 Remainder is a part), or to transfer
such ZFA to a receiving site, pursuant to section 93-32 of the Zoning
Resolution, shall not be impaired in any way by the City’s acquisition of
interests in Tax Block 710, Lot 11.]
Lot 11 Respondent admits that it is the owner of Tax Block 710, Lot 11. Paragraph 23
of the Petition otherwise contains legal conclusions to which no response is required; to the
extent a response is required, Lot 11 Respondent denies knowledge or information sufficient to
form a belief as to the truth of the allegations in Paragraph 23 of the Petition but states that
such easement does not diminish the enhanced value of the property conferred by the Hudson
Yards Rezoning and Development Program and attributable to the City’s special demand for
the property.
24. [In its letter dated March 23, 2023 (attached hereto as Exhibit C), the New
York City Department of City Planning (“DCP”) confirmed that after the City
acquires the portions of Tax Block 710 Lot 11 within Hudson Park &
Boulevard (Damage Parcels 2 and 3), the Owner could use the excluded +/-
22,925 square feet of Zoning Floor Area from those acquired portions on the
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Lot 11 Remainder (or any larger zoning lot of which the Lot 11 Remainder is a
part) or transfer that ZFA to a receiving site, as long as the Owner complies
with the provisions of ZR Section 93-32(a).]
To the extent Paragraph 24 cites to or is based on one or more written documents, Lot
11 Respondent respectfully refers the Court to those documents for their full and complete
contents. Paragraph 24 of the Petition also contains legal conclusions to which no response is
required; to the extent a response is required, Lot 11 Respondent admits that it received such a
letter but otherwise denies knowledge or information sufficient to form a belief as to the truth
of the allegations in Paragraph 24 of the Petition.
25. [Additionally, the City’s acquisition of interests in Tax Block 710, Lot 11 shall
be under and subject to all right, title, and interest of Amtrak, which were
remised, released, and quitclaimed unto Amtrak pursuant to a Deed and
Indenture, from CRC Properties, Inc., dated June 27, 1986, and recorded in
the Office of the City Register, New York County, in Reel 1203, Page 1015 (the
“Amtrak Deed”), which is attached hereto and made a part hereof as Exhibit
D.]
To the extent Paragraph 25 cites to or is based on one or more written documents, Lot
11 Respondent respectfully refers the Court to those documents for their full and complete
contents. Paragraph 25 of the Petition also contains legal conclusions to which no response is
required; to the extent a response is required, Lot 11 Respondent denies knowledge or
information sufficient to form a belief as to the truth of the allegations in Paragraph 25 of the
Petition.
26. [Specifically, the City’s acquisition of interests in Tax Block 710, Lot 11 shall
be subject to Amtrak’s right, title and interest in the line of railroad
specifically described in the Amtrak Deed, and more commonly known as the
Empire Line.]
Paragraph 26 of the Petition contains legal conclusions to which no response
is required; to the extent a response is required, Lot 11 Respondent denies knowledge or
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information sufficient to form a belief as to the truth of the allegations in Paragraph 26 of the
Petition.
27. [Upon acquisition of the Stage 3 Acquisition Parcels, the City shall obtain,
under and subject to the terms and conditions of the Amtrak Deed, the rights
and obligations of the “Developer” of Tax Block 710, Lot 11, as the term
“Developer” is defined and used in the Amtrak Deed (including Exhibit A to
the Amtrak Deed).]
Paragraph 27 of the Petition contains legal conclusions to which no response is
required; to the extent a response is required, Lot 11 Respondent denies knowledge or
information sufficient to form a belief as to the truth of the allegations in Paragraph 27 of the
Petition.
28. [In addition to excluding from this acquisition the rights of Amtrak and the
development rights associated with Block 710, Lot 11, as described above, the
following interests are also excluded from the acquisition of the Stage 3
Acquisition Parcels:
(a) All right, title and interest of the New York City Transit Authority in
and to the following property, if and to the extent located within the
property being acquired: (1) routes, tracks, tunnels, switches, sidings,
extensions, connections, platforms, structures, or terminals; (2) wires,
conduits, pipes, ducts, telephones, signal and other communication or
service facilities; (3) columns, footings, bracings, foundations and other
structural members; and (4) any other devices, equipment and facilities
used in connection with the operation or maintenance of the subway
system;
(b) Public and governmental utility facilities having a physical
manifestation within the area being acquired; all recorded easements,
licenses, and other agreements, if any, for such public and
governmental utility facilities; and reasonable rights of access to such
public and governmental utility facilities necessary for the maintenance,
operation, repair, replacement or use of the same whether or not
embodied in recorded instruments;
(c) So long as they stand, walls of buildings built on property not being
acquired, which encroach on property within the acquisition lines as
such lines are shown on the Acquisition Map, and any cornices or lintels
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which encroach on property within the acquisition lines as such lines
are shown on the Acquisition Map.]
Paragraph 28 of the Petition contains legal conclusions to which no response is
required; to the extent a response is required, Lot 11 Respondent denies knowledge or
information sufficient to form a belief as to the truth of the allegations in Paragraph 28 of the
Petition.
29. [Pursuant to Section 402 of the EDPL, the City has filed in the office of the
Clerk of the County of New York, a Notice of Pendency of this proceeding, a
copy of which is annexed hereto as Exhibit E.]
To the extent Paragraph 29 cites to or is based on one or more written documents, Lot
11 Respondent respectfully refers the Court to those documents for their full and complete
contents. Paragraph 29 of the Petition otherwise contains legal conclusions to which no
response is required; to the extent a response is required, Lot 11 Respondent denies knowledge
or information sufficient to form a belief as to the truth of the allegations in Paragraph 29 of
the Petition.
30. [The names and addresses of the owners, or other persons who may have an
interest in the Stage 3 Acquisition Parcels, are set forth in Schedule B to the
Notice of Pendency that is attached hereto as Exhibit D. If there are other
persons having an interest in the Stage 3 Acquisition Parcels, their names are
unknown to the City and its counsel.]
To the extent Paragraph 30 cites to or is based on one or more written documents, Lot
11 Respondent respectfully refers the Court to those documents for their full and complete
contents. Lot 11 Respondent otherwise denies knowledge or information sufficient to form a
belief as to the truth of the allegations in Paragraph 30 of the Petition.
31. [In accordance with Section 402 of the EDPL, the City has caused a proposed
Acquisition Map to be prepared describing the real property and real property
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interests to be acquired pursuant to this Petition. The Acquisition Map is
attached hereto as Exhibit F.]
To the extent Paragraph 31 cites to or is based on one or more written documents, Lot
11 Respondent respectfully refers the Court to those documents for their full and complete
contents. Lot 11 Respondent otherwise denies knowledge or information sufficient to form a
belief as to the truth of the allegations in Paragraph 31 of the Petition.
32. [On July 15, 2021, Deputy Mayor Vicki Been approved the subject acquisitions
and ordered the Corporation Counsel to institute acquisition proceedings.]
Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 32 of the Petition.
33. [Nothing in this petition is meant to modify, diminish or in any way impact
Amtrak’s right, title and interest under the Amtrak Deed.]
Paragraph 33 of the Petition contains legal conclusions to which no response is
required; to the extent a response is required, Lot 11 Respondent denies knowledge or
information sufficient to form a belief as to the truth of the allegations in Paragraph 33 of the
Petition.
34. [Nothing in this petition is meant to modify, diminish or in any way impact
Amtrak’s ability to operate its Empire Line as currently configured.]
Paragraph 34 of the Petition contains legal conclusions to which no response is
required; to the extent a response is required, Lot 11 Respondent denies knowledge or
information sufficient to form a belief as to the truth of the allegations in Paragraph 34 of the
Petition.
35. [The City does not seek to acquire by condemnation in this proceeding any
right, title or interest held by Amtrak with regard to any of the Stage 3
Acquisition Parcels.]
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Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 35 of the Petition.
[WHEREFORE, the City respectfully requests that this Court enter an Order:
1. granting the Petition in all respects;
2. authorizing the City to file the Acquisition Map, in the form annexed to
this Petition, in the Office of the Clerk of the County of New York or the
Office of the City Register, Borough of Manhattan;
3. directing that, upon the filing or recording of the Order granting this
Petition and the filing or recording of the Acquisition Map, the acquisition of
the properties and real property interests sought to be acquired shall be
complete and all title to the Stage 3 Acquisition Parcels sought to be acquired
and described above shall vest in the City, together with the legal right of
possession, but, if occupied, the City shall have the right to seek possession
pursuant to Section 405 of the EDPL or other applicable law;
4. providing that this Court shall determine all claims for just compensation
arising from the acquisition of the properties and real property interests and
that such claims shall be heard without a jury and without referral to a
referee or commissioner;
5. directing that, within 30 days of the entry of the Order deciding this
application, the City shall cause a Notice of Acquisition to be published in at
least ten successive issues of The City Record, an official newspaper in the
City of New York, and shall serve a copy of such notice by first class mail on
each condemnee at such condemnee’s last known address or upon such
condemnee’s attorney of record;
6. directing that each condemnee shall have a period not to exceed six months
from the date of entry of the Order deciding this application within which to
file a written claim, demand, or notice of appearance with the Clerk of the
Court. A copy of such claim, demand or notice of appearance shall be served
within the prescribed time upon the City's counsel, Hon. Sylvia 0. Hinds-
Radix, Corporation Counsel of the City of New York, 100 Church Street,
New York, New York 10007, Attn: Michael Chestnov, Esq., and upon Carter
Ledyard & Milburn LLP, 28 Liberty Street, 41st Floor, New York, New
York 10005, Attn: Michael H. Bauscher, Esq.; and
7. granting the City such other and further relief as this Court deems just
and proper.]
Lot 11 Respondent denies knowledge or information sufficient as to whether Petitioner
is entitled to the relief that Petitioner seeks but states that the offer from the City dated January
11, 2023 does not constitute just compensation, and Lot 11 Respondent reserves the right to file
and litigate a claim before this Court for just compensation if the Court grants the Petition, as
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well as to recover attorney, appraiser, and engineering fees pursuant to EDPL 701 if the ultimate
award is substantially in excess of the amount of the condemnor's proof.
Dated: New York, New York Respectfully submitted,
May 16, 2023
PILLSBURY WINTHROP SHAW
PITTMAN LLP
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James M. Catterson
Rolando T. Acosta
Brianna Walsh
Danielle M. Stefanucci
31 West 52nd Street
New York, NY 10019-6131
Phone: 212.858.1000
Fax: 212.858.1500
jamcs.cattcrson@pillsbury law.com
rolando.acosta@pillsb urylaw.com
brianna.walsh@piI lsbury law.com
danielle.stefanucci@pillsburylaw.com
Attorneys for Respondent 528-53./ West 39
L.L.C.
15
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FILED: NEW YORK COUNTY CLERK 05/17/2023 12:13 PM INDEX NO. 451121/2023
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/17/2023
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Preview
FILED: NEW YORK COUNTY CLERK 05/17/2023 12:13 PM INDEX NO. 451121/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/17/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------x In - the Matter of the Application of THE CITY : OF NEW YORK, : Index No: 451121/2023 Petitioner, : (Hagler, J.S.C.) : To Acquire by Exercise of its Powers of : Eminent Domain, Fee Interests in Certain Real : Property Known as Tax Block 708, Lot 48; and : 528-534 WEST 39 L.L.C’s Fee Interests and a Temporary Easement in Tax : VERIFIED ANSWER TO Block 710, Lot 11; all Located in the Borough : PETITION of Manhattan, Required as Part of the : : HUDSON PARK AND BOULEVARD : PROJECT, PHASE 2, STAGE 3. : : ---------------------------------x - 528-534 West 39 L.L.C. (hereinafter referred d to as “Lot 11 Respondent”), by and through its attorneys, Pillsbury Winthrop Shaw Pittman LLP, yy hereby sets forth the following Answer to the Verified Petition dated April 19, 2023 (NYSCEF Doc. No. 1) (hereinafter referred to as the “Petition”). Any allegation, averment, contention, or statement in the Petition not admitted is denied. Lot 11 Respondent responds to each of the paragraphs of the Petition as follows: 1. [Pursuant to Sections 8 and 381 of the New York City Charter (the “Charter”), the City is authorized to acquire title in fee to real property or any interest therein required for public use.] Paragraph 1 of the Petition contains legal conclusions to which no response is required; to the extent a response is required, Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 1 of the Petition. 1 of 16 FILED: NEW YORK COUNTY CLERK 05/17/2023 12:13 PM INDEX NO. 451121/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/17/2023 2. [Pursuant to Sections 197-c and 197-d of the Charter, the acquisition of the real property interests described below was approved by the City Planning Commission on November 22, 2004, and by the City Council on January 19, 2005 (Resolution Nos. 759 and 782 through 791).] Paragraph 2 of the Petition contains legal conclusions to which no response is required; to the extent a response is required, Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 2 of the Petition. 3. [Hudson Park and Boulevard is an approximately 4-acre system of tree-lined parks and open space planned to run between 10th and 11th Avenues from West 33rd to West 39th Streets. The first phase of the Park and Boulevard was completed in 2015 and is located between West 33rd and West 36th Streets, and has been renamed Bella Abzug Park. Phase 2 of the Hudson Park and Boulevard system (the “Project”) will extend the Park north, from West 36th to West 39th Streets. The Project will also extend the Boulevard north from West 36th to West 38th Streets.] Lot 11 Respondent denies the characterization of the Hudson Park and Boulevard as a single project comprising two phases. Lot 11 Respondent otherwise denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 3 of the Petition. 4. [The completed Hudson Park and Boulevard is a fundamental element of the new Hudson Yards district, which would continue to bring light to the mid- block areas and assist with pedestrian and vehicular circulation.] Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 4 of the Petition. 5. [The Hudson Park and Boulevard is part of the No. 7 Subway Extension - Hudson Yards Rezoning and Development Program, which is a collaborative effort involving the City, the Metropolitan Transportation Authority (“MTA”), and numerous City and State agencies for, among other things, a rezoning affecting over 300 acres on the Far West Side of Midtown 2 2 of 16 FILED: NEW YORK COUNTY CLERK 05/17/2023 12:13 PM INDEX NO. 451121/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/17/2023 Manhattan, an improved transit system, new parkland and a new mid-block boulevard system. This comprehensive and interrelated zoning and transit improvement Project was designed to accommodate additional commercial, residential and retail development over several decades.] Lot 11 Respondent denies the characterization of the Hudson Park and Boulevard as a single project comprising two phases. Lot 11 Respondent otherwise denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 5 of the Petition. 6. [On April 30, 2019, a duly noticed joint public hearing by the City was held, in accordance with the provisions of Article 2 of the New York State Eminent Domain Procedure Law (“EDPL”), regarding the Project.] Lot 11 Respondent admits that such hearing was held. Paragraph 6 of the Petition otherwise contains legal conclusions to which no response is required; to the extent a response is required, Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 6 of the Petition. 7. [At that hearing, a representative of the Hudson Yards Development Corporation presented information to the public concerning the public use, benefits, and purposes to be served by the proposed acquisitions for the Project, the reasons that the real property interests were proposed to be acquired, and the general effect of the proposed acquisitions on the environment and residents of the locality.] Lot 11 Respondent admits that such hearing was held. Lot 11 Respondent otherwise denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 7 of the Petition. 8. [In addition, copies of acquisition maps showing the specific locations and dimensions of the property interests to be acquired by the City for the Project were displayed at the hearing and made available upon request.] 3 3 of 16 FILED: NEW YORK COUNTY CLERK 05/17/2023 12:13 PM INDEX NO. 451121/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/17/2023 Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 8 of the Petition. 9. [Representatives of the City (including the Department of Citywide Administrative Services) were present at that April 30, 2019 public hearing and were given the transcript of that hearing and the written comments subsequently submitted.] Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 9 of the Petition. 10. [The record of the hearing was closed on May 21, 2019 at 5:00 p.m. All testimony and written comments received at the hearing or by May 21, 2019 at 5:00 p.m., and all materials made available at the hearing, were reviewed, made a part of the record, and afforded full consideration.] Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 10 of the Petition. 11. [Notices of the public hearing, copies of which notice are annexed hereto (with proofs of publication) as Exhibit A, were duly published in five successive issues of the New York Post on April 1, 2, 3, 4 and 5, 2019 and in five successive issues of The City Record on April 1, 2, 3, 4 and 5, 2019.] To the extent Paragraph 11 cites to or is based on one or more written documents, Lot 11 Respondent respectfully refers the Court to those documents for their full and complete contents. Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 11 of the Petition. 12. In addition to such publications, the City mailed copies of the notice of public hearing, by certified mail, return receipt requested, to all assessment record billing owners, as well as to all persons known to the City who might have an interest in one or more of the parcels to be acquired. Further, on April 19, 2019, the City caused six copies of the notice of public hearing to be posted within the Project area.] 4 4 of 16 FILED: NEW YORK COUNTY CLERK 05/17/2023 12:13 PM INDEX NO. 451121/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/17/2023 Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 12 of the Petition, except to admit that it received copies of such notice. 13. [On August 8, 2019, pursuant to Section 204 of the EDPL, and based upon the record of the hearing and having given due consideration to the comments of the public, the City made the requisite determination and findings concerning the City’s proposed acquisitions of certain real property, including the property interests that are the subject of this Petition. The City’s determination and findings was duly published in both The City Record and the New York Post on August 15 and 16, 2019. A copy of the determination and findings (with proofs of publication) is annexed hereto as Exhibit B.] To the extent Paragraph 13 cites to or is based on one or more written documents, Lot 11 Respondent respectfully refers the Court to those documents for their full and complete contents. Paragraph 13 of the Petition also contains legal conclusions to which no response is required; to the extent a response is required, Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 13 of the Petition. 14. [On August 15, 2019, a true and complete copy of the City’s determination and findings was mailed by certified mail, return receipt requested, to each assessment record billing owner or his or her attorney of record whose property may be acquired, and others who may have an interest in such property and who were known to the City. Additional mailings of true and complete copies of the City’s determination and findings occurred on August 22, 26, 27, 28, and 29, 2019, and September 4, 2019.] Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 14 of the Petition, except to admit that it received copies of such notice. 15. [On May 24, 2022, the City commenced its first Phase 2 proceeding, identified as the Phase 2, Stage 1 proceeding (New York County Supreme Court Index No. 451619/2022), to acquire a portion of Manhattan Tax Block 708, Lot 20 5 5 of 16 FILED: NEW YORK COUNTY CLERK 05/17/2023 12:13 PM INDEX NO. 451121/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/17/2023 (the “Stage 1 Parcel”) in connection with the Project. By Order dated July 26, 2022, and duly entered in the office of the Clerk of the County of New York on July 27, 2022, this Court granted the City’s Phase 2, Stage 1 petition. Title to the Stage 1 Parcel vested in the City on August 9, 2022.] Lot 11 Respondent denies the characterization of the Hudson Park and Boulevard as a single project comprising two phases. Lot 11 Respondent otherwise denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 15 of the Petition. 16. [The Stage 3 acquisitions that are the subject of this proceeding are for the purpose of extending Bella Abzug Park and Hudson Boulevard. The Park is to be extended from West 36th to West 39th Streets and the Boulevard is to be extended from West 36th to West 38th Streets. When complete, the mid-block park will run from 33rd to 39th Street and Hudson Boulevard will run from 33rd to 38th Street, between 10th and 11th Avenues.] Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 16 of the Petition. 17. [The real property to be acquired in fee simple absolute by the City in this proceeding, but subject to paragraphs 23 through 27 below, is as follows: (a) Tax Block 708, Lot 48 (Damage Parcel 1); and (b) portions of Tax Block 710, Lot 11 located within the Phase 2 Hudson Boulevard and Park (as that term is defined in the NYC Zoning Resolution) (Damage Parcels 2 and 3) (collectively, the “Stage 3 Fee Acquisition Parcels”). The Stage 3 Fee Acquisition Parcels are described by metes and bounds on Schedule A, attached hereto. The City’s acquisition of the Stage 3 Fee Acquisition Parcels shall include the acquisition of any improvements that are located on the Stage 3 Fee Acquisition Parcels but that extend beyond any property line of such Stage 3 Fee Acquisition Parcels.] Lot 11 Respondent admits that Schedule A reflects the metes and bounds of the portion of the property located at Block 710, Lot 11 that the City had previously indicated would be acquired in fee simple absolute. Lot 11 Respondent denies the characterization of the Hudson Park and Boulevard as a single project comprising two phases. Lot 11 Respondent otherwise 6 6 of 16 FILED: NEW YORK COUNTY CLERK 05/17/2023 12:13 PM INDEX NO. 451121/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/17/2023 denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 17 of the Petition. 18. [The real property in which a temporary easement is to be acquired by the City in this proceeding is the portion of Tax Block 710, Lot 11 that is not being acquired in fee simple absolute (westerly portion) and that is located outside the Phase 2 Hudson Boulevard and Park (Damage Parcel 4) (the “Temporary Easement Parcel,” which together with the Stage 3 Fee Acquisition Parcels shall be referred to herein as the “Stage 3 Acquisition Parcels”). The Temporary Easement Parcel is described by metes and bounds on Schedule A, attached hereto.] Lot 11 Respondent admits that Schedule A reflects the metes and bounds of the portion of the property located at Block 710, Lot 11 that the City had previously indicated would be acquired for a temporary easement. Lot 11 Respondent denies the characterization of the Hudson Park and Boulevard as a single project comprising two phases. Lot 11 Respondent otherwise denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 18 of the Petition but states that such easement does not diminish the enhanced value of the property conferred by the Hudson Yards Rezoning and Development Program and attributable to the City’s special demand for the property. 19. [The time during which the Temporary Easement Parcel will be taken is five years, measured from the date of the acquisition of such interest.] Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 19 of the Petition but states that such easement does not diminish the enhanced value of the property conferred by the Hudson Yards Rezoning and Development Program and attributable to the City’s special demand for the property. 20. [The City’s acquisition of the temporary easement over the Temporary Easement Parcel shall give the City the right to (i) demolish and remove the building currently on Block 710, Lot 11, including any foundations, footings and the like that are located below grade, and including any portions of the 7 7 of 16 FILED: NEW YORK COUNTY CLERK 05/17/2023 12:13 PM INDEX NO. 451121/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/17/2023 building that may extend beyond any property line of Block 710, Lot 11 (the “Building”), (ii) fill any subgrade area of the Temporary Easement Parcel that had been occupied by a portion of the Building so that the entire Temporary Easement Parcel is at grade level; and (iii) use the Temporary Easement Parcel for construction staging purposes related to the construction of Phase 2 of Bella Abzug Park and Hudson Boulevard.] Lot 11 Respondent denies the characterization of the Hudson Park and Boulevard as a single project comprising two phases. Paragraph 20 of the Petition contains legal conclusions to which no response is required; to the extent a response is required, Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 20 of the Petition but states that such easement does not diminish the enhanced value of the property conferred by the Hudson Yards Rezoning and Development Program and attributable to the City’s special demand for the property. 21. [Other than as may be necessary to demolish and remove the Building, the temporary easement shall not give the City the right to excavate the Temporary Easement Parcel.] Paragraph 21 of the Petition contains legal conclusions to which no response is required; to the extent a response is required, Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 21 of the Petition but states that such easement does not diminish the enhanced value of the property conferred by the Hudson Yards Rezoning and Development Program and attributable to the City’s special demand for the property 22. [At the conclusion of the easement term, the City shall return the Temporary Easement Parcel, except that the Building shall have been removed, and with respect to any subgrade area that the City fills during the term of the easement, the City shall return such area with the fill in place and with the Temporary Easement Parcel at the level of the adjacent street curb.] 8 8 of 16 FILED: NEW YORK COUNTY CLERK 05/17/2023 12:13 PM INDEX NO. 451121/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/17/2023 Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 22 of the Petition but states that such easement does not diminish the enhanced value of the property conferred by the Hudson Yards Rezoning and Development Program and attributable to the City’s special demand for the property. 23. [The City’s acquisition of interests in Tax Block 710, Lot 11 shall not include the acquisition of any development rights based on “floor area” (as the term “floor area” is defined in Section 12-10 of the NYC Zoning Resolution) (“Zoning Floor Area” or “ZFA”) associated with the areas of Damage Parcels 2 and 3 (located within Hudson Park & Boulevard), which development rights shall remain the property of the current owner of those areas, which upon information and belief is 528-534 West 39 LLC (such entity, or the actual owner of Tax Block 710, Lot 11, if 528-534 West 39 LLC is not the owner, the “Owner”). Upon the City’s acquisition of Damage Parcels 2 and 3, the legal right of the Owner to use such +/- 22,925 square feet of Zoning Floor Area on the remaining portion of Tax Block 710, Lot 11 (the “Lot 11 Remainder”) (or any larger zoning lot of which the Lot 11 Remainder is a part), or to transfer such ZFA to a receiving site, pursuant to section 93-32 of the Zoning Resolution, shall not be impaired in any way by the City’s acquisition of interests in Tax Block 710, Lot 11.] Lot 11 Respondent admits that it is the owner of Tax Block 710, Lot 11. Paragraph 23 of the Petition otherwise contains legal conclusions to which no response is required; to the extent a response is required, Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 23 of the Petition but states that such easement does not diminish the enhanced value of the property conferred by the Hudson Yards Rezoning and Development Program and attributable to the City’s special demand for the property. 24. [In its letter dated March 23, 2023 (attached hereto as Exhibit C), the New York City Department of City Planning (“DCP”) confirmed that after the City acquires the portions of Tax Block 710 Lot 11 within Hudson Park & Boulevard (Damage Parcels 2 and 3), the Owner could use the excluded +/- 22,925 square feet of Zoning Floor Area from those acquired portions on the 9 9 of 16 FILED: NEW YORK COUNTY CLERK 05/17/2023 12:13 PM INDEX NO. 451121/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/17/2023 Lot 11 Remainder (or any larger zoning lot of which the Lot 11 Remainder is a part) or transfer that ZFA to a receiving site, as long as the Owner complies with the provisions of ZR Section 93-32(a).] To the extent Paragraph 24 cites to or is based on one or more written documents, Lot 11 Respondent respectfully refers the Court to those documents for their full and complete contents. Paragraph 24 of the Petition also contains legal conclusions to which no response is required; to the extent a response is required, Lot 11 Respondent admits that it received such a letter but otherwise denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 24 of the Petition. 25. [Additionally, the City’s acquisition of interests in Tax Block 710, Lot 11 shall be under and subject to all right, title, and interest of Amtrak, which were remised, released, and quitclaimed unto Amtrak pursuant to a Deed and Indenture, from CRC Properties, Inc., dated June 27, 1986, and recorded in the Office of the City Register, New York County, in Reel 1203, Page 1015 (the “Amtrak Deed”), which is attached hereto and made a part hereof as Exhibit D.] To the extent Paragraph 25 cites to or is based on one or more written documents, Lot 11 Respondent respectfully refers the Court to those documents for their full and complete contents. Paragraph 25 of the Petition also contains legal conclusions to which no response is required; to the extent a response is required, Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 25 of the Petition. 26. [Specifically, the City’s acquisition of interests in Tax Block 710, Lot 11 shall be subject to Amtrak’s right, title and interest in the line of railroad specifically described in the Amtrak Deed, and more commonly known as the Empire Line.] Paragraph 26 of the Petition contains legal conclusions to which no response is required; to the extent a response is required, Lot 11 Respondent denies knowledge or 10 10 of 16 FILED: NEW YORK COUNTY CLERK 05/17/2023 12:13 PM INDEX NO. 451121/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/17/2023 information sufficient to form a belief as to the truth of the allegations in Paragraph 26 of the Petition. 27. [Upon acquisition of the Stage 3 Acquisition Parcels, the City shall obtain, under and subject to the terms and conditions of the Amtrak Deed, the rights and obligations of the “Developer” of Tax Block 710, Lot 11, as the term “Developer” is defined and used in the Amtrak Deed (including Exhibit A to the Amtrak Deed).] Paragraph 27 of the Petition contains legal conclusions to which no response is required; to the extent a response is required, Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 27 of the Petition. 28. [In addition to excluding from this acquisition the rights of Amtrak and the development rights associated with Block 710, Lot 11, as described above, the following interests are also excluded from the acquisition of the Stage 3 Acquisition Parcels: (a) All right, title and interest of the New York City Transit Authority in and to the following property, if and to the extent located within the property being acquired: (1) routes, tracks, tunnels, switches, sidings, extensions, connections, platforms, structures, or terminals; (2) wires, conduits, pipes, ducts, telephones, signal and other communication or service facilities; (3) columns, footings, bracings, foundations and other structural members; and (4) any other devices, equipment and facilities used in connection with the operation or maintenance of the subway system; (b) Public and governmental utility facilities having a physical manifestation within the area being acquired; all recorded easements, licenses, and other agreements, if any, for such public and governmental utility facilities; and reasonable rights of access to such public and governmental utility facilities necessary for the maintenance, operation, repair, replacement or use of the same whether or not embodied in recorded instruments; (c) So long as they stand, walls of buildings built on property not being acquired, which encroach on property within the acquisition lines as such lines are shown on the Acquisition Map, and any cornices or lintels 11 11 of 16 FILED: NEW YORK COUNTY CLERK 05/17/2023 12:13 PM INDEX NO. 451121/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/17/2023 which encroach on property within the acquisition lines as such lines are shown on the Acquisition Map.] Paragraph 28 of the Petition contains legal conclusions to which no response is required; to the extent a response is required, Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 28 of the Petition. 29. [Pursuant to Section 402 of the EDPL, the City has filed in the office of the Clerk of the County of New York, a Notice of Pendency of this proceeding, a copy of which is annexed hereto as Exhibit E.] To the extent Paragraph 29 cites to or is based on one or more written documents, Lot 11 Respondent respectfully refers the Court to those documents for their full and complete contents. Paragraph 29 of the Petition otherwise contains legal conclusions to which no response is required; to the extent a response is required, Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 29 of the Petition. 30. [The names and addresses of the owners, or other persons who may have an interest in the Stage 3 Acquisition Parcels, are set forth in Schedule B to the Notice of Pendency that is attached hereto as Exhibit D. If there are other persons having an interest in the Stage 3 Acquisition Parcels, their names are unknown to the City and its counsel.] To the extent Paragraph 30 cites to or is based on one or more written documents, Lot 11 Respondent respectfully refers the Court to those documents for their full and complete contents. Lot 11 Respondent otherwise denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 30 of the Petition. 31. [In accordance with Section 402 of the EDPL, the City has caused a proposed Acquisition Map to be prepared describing the real property and real property 12 12 of 16 FILED: NEW YORK COUNTY CLERK 05/17/2023 12:13 PM INDEX NO. 451121/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/17/2023 interests to be acquired pursuant to this Petition. The Acquisition Map is attached hereto as Exhibit F.] To the extent Paragraph 31 cites to or is based on one or more written documents, Lot 11 Respondent respectfully refers the Court to those documents for their full and complete contents. Lot 11 Respondent otherwise denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 31 of the Petition. 32. [On July 15, 2021, Deputy Mayor Vicki Been approved the subject acquisitions and ordered the Corporation Counsel to institute acquisition proceedings.] Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 32 of the Petition. 33. [Nothing in this petition is meant to modify, diminish or in any way impact Amtrak’s right, title and interest under the Amtrak Deed.] Paragraph 33 of the Petition contains legal conclusions to which no response is required; to the extent a response is required, Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 33 of the Petition. 34. [Nothing in this petition is meant to modify, diminish or in any way impact Amtrak’s ability to operate its Empire Line as currently configured.] Paragraph 34 of the Petition contains legal conclusions to which no response is required; to the extent a response is required, Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 34 of the Petition. 35. [The City does not seek to acquire by condemnation in this proceeding any right, title or interest held by Amtrak with regard to any of the Stage 3 Acquisition Parcels.] 13 13 of 16 FILED: NEW YORK COUNTY CLERK 05/17/2023 12:13 PM INDEX NO. 451121/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/17/2023 Lot 11 Respondent denies knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 35 of the Petition. [WHEREFORE, the City respectfully requests that this Court enter an Order: 1. granting the Petition in all respects; 2. authorizing the City to file the Acquisition Map, in the form annexed to this Petition, in the Office of the Clerk of the County of New York or the Office of the City Register, Borough of Manhattan; 3. directing that, upon the filing or recording of the Order granting this Petition and the filing or recording of the Acquisition Map, the acquisition of the properties and real property interests sought to be acquired shall be complete and all title to the Stage 3 Acquisition Parcels sought to be acquired and described above shall vest in the City, together with the legal right of possession, but, if occupied, the City shall have the right to seek possession pursuant to Section 405 of the EDPL or other applicable law; 4. providing that this Court shall determine all claims for just compensation arising from the acquisition of the properties and real property interests and that such claims shall be heard without a jury and without referral to a referee or commissioner; 5. directing that, within 30 days of the entry of the Order deciding this application, the City shall cause a Notice of Acquisition to be published in at least ten successive issues of The City Record, an official newspaper in the City of New York, and shall serve a copy of such notice by first class mail on each condemnee at such condemnee’s last known address or upon such condemnee’s attorney of record; 6. directing that each condemnee shall have a period not to exceed six months from the date of entry of the Order deciding this application within which to file a written claim, demand, or notice of appearance with the Clerk of the Court. A copy of such claim, demand or notice of appearance shall be served within the prescribed time upon the City's counsel, Hon. Sylvia 0. Hinds- Radix, Corporation Counsel of the City of New York, 100 Church Street, New York, New York 10007, Attn: Michael Chestnov, Esq., and upon Carter Ledyard & Milburn LLP, 28 Liberty Street, 41st Floor, New York, New York 10005, Attn: Michael H. Bauscher, Esq.; and 7. granting the City such other and further relief as this Court deems just and proper.] Lot 11 Respondent denies knowledge or information sufficient as to whether Petitioner is entitled to the relief that Petitioner seeks but states that the offer from the City dated January 11, 2023 does not constitute just compensation, and Lot 11 Respondent reserves the right to file and litigate a claim before this Court for just compensation if the Court grants the Petition, as 14 14 of 16 INDEX FILED: NEW YORK COUNTY CLERK 05/17/2023 12:13 PM NO. 451121/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/17/2023 well as to recover attorney, appraiser, and engineering fees pursuant to EDPL 701 if the ultimate award is substantially in excess of the amount of the condemnor's proof. Dated: New York, New York Respectfully submitted, May 16, 2023 PILLSBURY WINTHROP SHAW PITTMAN LLP � By:-"" -:..--:::�==---�:.........:.�--- :...=:..,, James M. Catterson Rolando T. Acosta Brianna Walsh Danielle M. Stefanucci 31 West 52nd Street New York, NY 10019-6131 Phone: 212.858.1000 Fax: 212.858.1500 jamcs.cattcrson@pillsbury law.com rolando.acosta@pillsb urylaw.com brianna.walsh@piI lsbury law.com danielle.stefanucci@pillsburylaw.com Attorneys for Respondent 528-53./ West 39 L.L.C. 15 15 of 16 FILED: NEW YORK COUNTY CLERK 05/17/2023 12:13 PM INDEX NO. 451121/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/17/2023 16 of 16