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FILED: NEW YORK COUNTY CLERK 12/14/2023 12:01 PM INDEX NO. 158574/2023
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
=======================================X Index No.: 158574/2023
PROJJAL DUTTA,
Plaintiff,
-against-
LISA SILVERSMITH a/k/a LISA FIEKOWSKY and
THE NEW YORK CITY
DEPARTMENT OF BUILDINGS,
Defendants.
=======================================X
PLAINTIFF’S REPLY MEMORANDUM OF LAW
Respectfully submitted,
Singh & Rani, LLP
Attorneys for Plaintiff
5 Penn Plaza, 23rd Floor
New York, NY 10001
212-729-6920
rrani@singhranilaw.com
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PRELIMINARY STATEMENT
This memorandum of law is submitted in the support of Plaintiff’s order to show cause which seeks
an order against Defendants to stop any demolition of the building located at 451 Convent Avenue, New
York, New York 10031 (“451 Property”). Plaintiff further seeks injunction requiring Defendant to maintain
her building to avoid damage to Plaintiff’s property located at 453 Convent Avenue, New York, New York
10031 (“453 Property”).
RELEVANT FACTS
The relevant facts are fully set out in the Affidavit of Projjal Dutta submitted herewith and
respectfully incorporated by reference.
ARGUMENTS
Plaintiff is a proper party to sue, and the demolition order is not supported by substantial
evidence and a continued stay is required to prevent irreparable harm –
In Modiano Realty Inc. v. Env't Control Bd. of City of New York, 106 A.D.3d 541, 542, 965
N.Y.S.2d 462, 462–63 (App Div 1st Dept 2013), the First Department held that,
“[r]espondent failed to introduce substantial evidence to establish
that petitioner's residence was altered for occupancy by **463
four or more families (see generally
300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45
N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ). It
was bare surmise and conjecture to conclude, from photographs
depicting the outside of two doors in the basement, and the
presence of five mailboxes on the exterior of the premises, that
petitioner had illegally converted its premises (cf. Matter of Kurtin
v. City of New York, 78 A.D.3d 473, 911 N.Y.S.2d 40 [1st Dept.
2010] ), especially since the Department of Building's inspector
who issued the notices of violation did not testify at the hearing.”
Similarly, in this case, Defendant DOB fails to provide evidence to support finding that the
building must be demolished for public safety. City fails to attaches affidavit or other documentary
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evidence to support its claim when both Plaintiff and Respondent Silversmith object to the
authenticity of Respondent DOB’s claim that the building must be demolished.
Respondent DOB itself claims that Respondent Silversmith has obtained all the required
permits, and it is only a matter of time before the building is restored to a habitable condition and
as such, it is extremely important that Respondent DOB’s demolition order remains stayed while
Respondent Silversmith engages in the repair work for her building. If the stay on the demolition
is lifted, nothing will prevent the Respondent DOB from enforcing it despite Respondent
Silversmith’s efforts to undertake the repairs and Plaintiff will suffer irreparable harm besides the
destruction of a historic neighbourhood.
Individuals and entities have been found to have standing to object to renovation or alteration
plans for protected historic or landmarked buildings. Allison v. New York City Landmarks Pres.
Comm'n, 35 Misc. 3d 500, 944 N.Y.S.2d 408 (Sup. Ct. NY Co 2011).
In Sun-Brite Car Wash, Inc. v. Bd. of Zoning & Appeals of Town of N. Hempstead, 69 N.Y.2d
406, 413, 508 N.E.2d 130, 133 (1987) the Court of Appeals held that “[s]tanding principles, which
are in the end matters of policy, should not be heavy-handed; in zoning litigation in particular, it
is desirable that land use disputes be resolved on their own merits rather than by preclusive,
restrictive standing rules (see, Matter of Douglaston Civic Assn. v. Galvin, supra, 36 N.Y.2d at 6,
364 N.Y.S.2d 830, 324 N.E.2d 317).” Similarly, Defendant DOB should not be allowed to take
excuse of standing issue when clearly, Plaintiff as Defendant Silversmith’s immediate neighbor is
directly impacted because of demolition plans by the Defendant DOB.
In Slevin v. Long Island Jewish Med. Ctr., 66 Misc. 2d 312, 315, 319 N.Y.S.2d 937, 942 (Sup.
Ct. Nassau Co 1971), the court held that “…..the neighbours would have the requisite standing,
assuming the allegations of the complaint to be true, even had they not requested the Town to
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enforce the ordinance. See, Lesron Junior, Inc. v. Feinberg, 13 A.D.2d 90, 213 N.Y.S.2d 602;
Rapasadi v. Phillips, 2 A.D.2d 451, 156 N.Y.S.2d 746. In order to maintain an action for injunctive
relief, a plaintiff must show that he has a special interest which will be substantially damaged by
the use which he seeks to enjoin. Barnathan v. Garden City Park Water Dist., 21 A.D.2d 832, 251
N.Y.S.2d 706; Meadows v. Binkowiski, 50 Misc.2d 19, 269 N.Y.S.2d 331, affd. 27 A.D.2d 706,
279 N.Y.S.2d 1019.” Here, Plaintiff’s, his property and the historic landmark neighbourhood will
suffer irreparable harm and irreplaceable loss if continued stay on demolition is not granted.
Contrary to Defendant DOB’s claim in its opposition papers that there is no irreparable harm
as the DOB continues to extend the hold on demolition, however as seen from Exhibit F, an E-
mail from Defendant DOB’s counsel unambiguously states that the DOB will not allow or grant
any further holds on the demolition order for Defendant Silversmith’s property as she has not begin
work.
The Court need not finally determine the merits of the case on this motion rather
“[m]aintainence of the status quo is the object of the grant of provisional injunctive relief.”
Chrysler Corp. v Fedders Corp., 63 A.D.2d 567, 569, 404 N.Y.S.2d 844 (1st Dept. 1978). The
showing of a likelihood of success on the merits required before a preliminary injunction may be
properly issued must not be equated with the showing of a certainty of success. Tucker v. Toia,
54 A.D.2d 322, 388 N.Y.S.2d 475 (4th Dept. 1976). It is enough if the moving party makes a
prima facie showing of its right to relief; the actual proving of their case should be left to the full
hearing on the merits. Swope v. Melian, 35 A.D.2d 981, 317 N.Y.S.2d 985 (2nd Dept. 1970); and
see 12 Carmody-Wait 2d, NY Prac, 78:23, pp 71-72.
A historic preserved neighborhood will be lost impacting Plaintiff and similarly situated
neighbors without the court extending stay on demolition ordered by the Defendant DOB of the
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Defendant Silversmith’s building.
The second prong of the Order to Show Cause continues to be unopposed by Silversmith.
II. Defendant, Lisa or her agents must take necessary IMMEDIATE steps to protect
Plaintiff’s property located at 453 Convent Avenue, New York, New York 10031 from any
damage caused by lack of maintenance to Defendant’s property, 451 Convent Avenue, New
York, New York 10031
Your Honor Ordered Defendant Silversmith to take necessary steps to protect Plaintiff’s
property to prevent further damage while the building is being restored and the underling case for
extensive damage caused to Plaintiff’s building continues.
To this day, Silversmith has failed to take any steps to ensure the protection of Plaintiff’s
property.
Exhibit A is a recent showing the roof of 451 Convent Avenue. Structural damage is now
widespread with the roof starting to collapse in the middle; causing roof joists to sag and the party
wall, divided equally between Lisa’s house and Plaintiff’s, to deform ever so significantly (Dutta’s
Affidavit ¶ 3)
Exhibit B is a picture showing the roof at the front of the buildings, immediately behind
the decorative cornice; the depicted damage in this picture has contributed to water, and racoons’
infiltration to Plaintiff’s building. (Dutta’s Affidavit ¶ 4)
Exhibit C contains picture # 1 of a wall inside Plaintiff’s house that is a party wall between
Plaintiff’s property and Lisa’s property from 2016 completely in undamaged and in good sound
structure but due to poor maintenance of Defendant’s property the same wall continues to be
damaged as result of defendant’s inaction as depicted in picture # 2 & 3. (Dutta’s Affidavit ¶ 5)
Exhibit D contains pictures of cracks on the side of Silversmith’s property, these cracks
are causing mice, rodent and racoons’ infiltration to Plaintiff’s building. (Dutta’s Affidavit ¶ 6)
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Exhibit E depicts a picture of a text Plaintiff sent to Lisa in 2018 regarding the racoon
infestation yet no steps have been taken to resolve the infestation in the last five (5) years.
The Court MUST Order Defendant Silversmith to Immediately take the following steps to
prevent additional and ongoing damage to Plaintiff’s property which is clearly ongoing as
Defendant Silversmith failed to oppose Defendants request.
A. Exterminate the racoons, rodents and insect infestation by hiring an exterminator.
B. In the event that Lisa is unable or unwilling to perform this task, as she has been
for five (5) years, it is respectfully requested that this Court hold her accountable
for the amounts of money required to engage an exterminator to exterminate the
infestation by Plaintiff.
C. Additionally, it is requested that within one week of this Order Lisa be directed to
hire an exterminator as she has not taken any steps since the last Court Order to
ensure the safety of Plaintiff’s building; the racoon problem is severe and
immediate.
D. Lisa must engage a contractor within two weeks to seal the holes and cracks along
the common party wall between her property and mine on the roof and party wall,
so that water coming in from the side and damaging my roof and ceiling, can stop.
E. If Lisa is unable or unwilling to perform this task, the court should hold her in
contempt and penalize her daily in the amount of $1,000 and hold her accountable
for the monetary damages required to engage a contractor to seal all the points of
ingress of water along the party wall, and to put protection in place that prevents
the extensive and ongoing damage to her property to stop spilling over onto mine.
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Exhibit F is an email from City’s attorney conveying that DOB’s “most recent hold on its
demolition order at 451 Convent Ave has expired, and the renewal request was denied due to lack
of work at the property. ”
The above mentioned e-mail clearly shows wilful negligence on part of Lisa to begin work
even though she has obtained all necessary Department of building permits.
Iii. The Third Prong of The Order To Show Request Must Also Be Granted Provided The
Above-Mentioned Status Of DOB.
Staying and Vacating demolition order issued by the Defendant, The New York City
Department of Buildings must be granted as discussed above and for the reasons set forth
especially, both Silversmith and DOB has conceded that the building can be rehabilitated.
The City has failed to provide evidence to support finding that the building must be
demolished for public safety. City fails to attach affidavit or other documentary evidence to support
its claim for demolition.
CONCLUSION
For the foregoing reasons, Plaintiffs’ emergency order to show cause be granted in its
entirety, along with such and further relief as the court deems proper.
Dated: December 14, 2023
New York, NY
Singh & Rani, LLP
By: _______________________________
REENA RANI, ESQ.
Attorneys for Plaintiff
5 Penn Plaza, 23rd Floor
New York, NY 10001
212-729-6920
rrani@singhranilaw.com
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Preview
FILED: NEW YORK COUNTY CLERK 12/14/2023 12:01 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK =======================================X Index No.: 158574/2023 PROJJAL DUTTA, Plaintiff, -against- LISA SILVERSMITH a/k/a LISA FIEKOWSKY and THE NEW YORK CITY DEPARTMENT OF BUILDINGS, Defendants. =======================================X PLAINTIFF’S REPLY MEMORANDUM OF LAW Respectfully submitted, Singh & Rani, LLP Attorneys for Plaintiff 5 Penn Plaza, 23rd Floor New York, NY 10001 212-729-6920 rrani@singhranilaw.com 1 1 of 7 FILED: NEW YORK COUNTY CLERK 12/14/2023 12:01 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/14/2023 PRELIMINARY STATEMENT This memorandum of law is submitted in the support of Plaintiff’s order to show cause which seeks an order against Defendants to stop any demolition of the building located at 451 Convent Avenue, New York, New York 10031 (“451 Property”). Plaintiff further seeks injunction requiring Defendant to maintain her building to avoid damage to Plaintiff’s property located at 453 Convent Avenue, New York, New York 10031 (“453 Property”). RELEVANT FACTS The relevant facts are fully set out in the Affidavit of Projjal Dutta submitted herewith and respectfully incorporated by reference. ARGUMENTS Plaintiff is a proper party to sue, and the demolition order is not supported by substantial evidence and a continued stay is required to prevent irreparable harm – In Modiano Realty Inc. v. Env't Control Bd. of City of New York, 106 A.D.3d 541, 542, 965 N.Y.S.2d 462, 462–63 (App Div 1st Dept 2013), the First Department held that, “[r]espondent failed to introduce substantial evidence to establish that petitioner's residence was altered for occupancy by **463 four or more families (see generally 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ). It was bare surmise and conjecture to conclude, from photographs depicting the outside of two doors in the basement, and the presence of five mailboxes on the exterior of the premises, that petitioner had illegally converted its premises (cf. Matter of Kurtin v. City of New York, 78 A.D.3d 473, 911 N.Y.S.2d 40 [1st Dept. 2010] ), especially since the Department of Building's inspector who issued the notices of violation did not testify at the hearing.” Similarly, in this case, Defendant DOB fails to provide evidence to support finding that the building must be demolished for public safety. City fails to attaches affidavit or other documentary 2 2 of 7 FILED: NEW YORK COUNTY CLERK 12/14/2023 12:01 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/14/2023 evidence to support its claim when both Plaintiff and Respondent Silversmith object to the authenticity of Respondent DOB’s claim that the building must be demolished. Respondent DOB itself claims that Respondent Silversmith has obtained all the required permits, and it is only a matter of time before the building is restored to a habitable condition and as such, it is extremely important that Respondent DOB’s demolition order remains stayed while Respondent Silversmith engages in the repair work for her building. If the stay on the demolition is lifted, nothing will prevent the Respondent DOB from enforcing it despite Respondent Silversmith’s efforts to undertake the repairs and Plaintiff will suffer irreparable harm besides the destruction of a historic neighbourhood. Individuals and entities have been found to have standing to object to renovation or alteration plans for protected historic or landmarked buildings. Allison v. New York City Landmarks Pres. Comm'n, 35 Misc. 3d 500, 944 N.Y.S.2d 408 (Sup. Ct. NY Co 2011). In Sun-Brite Car Wash, Inc. v. Bd. of Zoning & Appeals of Town of N. Hempstead, 69 N.Y.2d 406, 413, 508 N.E.2d 130, 133 (1987) the Court of Appeals held that “[s]tanding principles, which are in the end matters of policy, should not be heavy-handed; in zoning litigation in particular, it is desirable that land use disputes be resolved on their own merits rather than by preclusive, restrictive standing rules (see, Matter of Douglaston Civic Assn. v. Galvin, supra, 36 N.Y.2d at 6, 364 N.Y.S.2d 830, 324 N.E.2d 317).” Similarly, Defendant DOB should not be allowed to take excuse of standing issue when clearly, Plaintiff as Defendant Silversmith’s immediate neighbor is directly impacted because of demolition plans by the Defendant DOB. In Slevin v. Long Island Jewish Med. Ctr., 66 Misc. 2d 312, 315, 319 N.Y.S.2d 937, 942 (Sup. Ct. Nassau Co 1971), the court held that “…..the neighbours would have the requisite standing, assuming the allegations of the complaint to be true, even had they not requested the Town to 3 3 of 7 FILED: NEW YORK COUNTY CLERK 12/14/2023 12:01 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/14/2023 enforce the ordinance. See, Lesron Junior, Inc. v. Feinberg, 13 A.D.2d 90, 213 N.Y.S.2d 602; Rapasadi v. Phillips, 2 A.D.2d 451, 156 N.Y.S.2d 746. In order to maintain an action for injunctive relief, a plaintiff must show that he has a special interest which will be substantially damaged by the use which he seeks to enjoin. Barnathan v. Garden City Park Water Dist., 21 A.D.2d 832, 251 N.Y.S.2d 706; Meadows v. Binkowiski, 50 Misc.2d 19, 269 N.Y.S.2d 331, affd. 27 A.D.2d 706, 279 N.Y.S.2d 1019.” Here, Plaintiff’s, his property and the historic landmark neighbourhood will suffer irreparable harm and irreplaceable loss if continued stay on demolition is not granted. Contrary to Defendant DOB’s claim in its opposition papers that there is no irreparable harm as the DOB continues to extend the hold on demolition, however as seen from Exhibit F, an E- mail from Defendant DOB’s counsel unambiguously states that the DOB will not allow or grant any further holds on the demolition order for Defendant Silversmith’s property as she has not begin work. The Court need not finally determine the merits of the case on this motion rather “[m]aintainence of the status quo is the object of the grant of provisional injunctive relief.” Chrysler Corp. v Fedders Corp., 63 A.D.2d 567, 569, 404 N.Y.S.2d 844 (1st Dept. 1978). The showing of a likelihood of success on the merits required before a preliminary injunction may be properly issued must not be equated with the showing of a certainty of success. Tucker v. Toia, 54 A.D.2d 322, 388 N.Y.S.2d 475 (4th Dept. 1976). It is enough if the moving party makes a prima facie showing of its right to relief; the actual proving of their case should be left to the full hearing on the merits. Swope v. Melian, 35 A.D.2d 981, 317 N.Y.S.2d 985 (2nd Dept. 1970); and see 12 Carmody-Wait 2d, NY Prac, 78:23, pp 71-72. A historic preserved neighborhood will be lost impacting Plaintiff and similarly situated neighbors without the court extending stay on demolition ordered by the Defendant DOB of the 4 4 of 7 FILED: NEW YORK COUNTY CLERK 12/14/2023 12:01 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/14/2023 Defendant Silversmith’s building. The second prong of the Order to Show Cause continues to be unopposed by Silversmith. II. Defendant, Lisa or her agents must take necessary IMMEDIATE steps to protect Plaintiff’s property located at 453 Convent Avenue, New York, New York 10031 from any damage caused by lack of maintenance to Defendant’s property, 451 Convent Avenue, New York, New York 10031 Your Honor Ordered Defendant Silversmith to take necessary steps to protect Plaintiff’s property to prevent further damage while the building is being restored and the underling case for extensive damage caused to Plaintiff’s building continues. To this day, Silversmith has failed to take any steps to ensure the protection of Plaintiff’s property. Exhibit A is a recent showing the roof of 451 Convent Avenue. Structural damage is now widespread with the roof starting to collapse in the middle; causing roof joists to sag and the party wall, divided equally between Lisa’s house and Plaintiff’s, to deform ever so significantly (Dutta’s Affidavit ¶ 3) Exhibit B is a picture showing the roof at the front of the buildings, immediately behind the decorative cornice; the depicted damage in this picture has contributed to water, and racoons’ infiltration to Plaintiff’s building. (Dutta’s Affidavit ¶ 4) Exhibit C contains picture # 1 of a wall inside Plaintiff’s house that is a party wall between Plaintiff’s property and Lisa’s property from 2016 completely in undamaged and in good sound structure but due to poor maintenance of Defendant’s property the same wall continues to be damaged as result of defendant’s inaction as depicted in picture # 2 & 3. (Dutta’s Affidavit ¶ 5) Exhibit D contains pictures of cracks on the side of Silversmith’s property, these cracks are causing mice, rodent and racoons’ infiltration to Plaintiff’s building. (Dutta’s Affidavit ¶ 6) 5 5 of 7 FILED: NEW YORK COUNTY CLERK 12/14/2023 12:01 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/14/2023 Exhibit E depicts a picture of a text Plaintiff sent to Lisa in 2018 regarding the racoon infestation yet no steps have been taken to resolve the infestation in the last five (5) years. The Court MUST Order Defendant Silversmith to Immediately take the following steps to prevent additional and ongoing damage to Plaintiff’s property which is clearly ongoing as Defendant Silversmith failed to oppose Defendants request. A. Exterminate the racoons, rodents and insect infestation by hiring an exterminator. B. In the event that Lisa is unable or unwilling to perform this task, as she has been for five (5) years, it is respectfully requested that this Court hold her accountable for the amounts of money required to engage an exterminator to exterminate the infestation by Plaintiff. C. Additionally, it is requested that within one week of this Order Lisa be directed to hire an exterminator as she has not taken any steps since the last Court Order to ensure the safety of Plaintiff’s building; the racoon problem is severe and immediate. D. Lisa must engage a contractor within two weeks to seal the holes and cracks along the common party wall between her property and mine on the roof and party wall, so that water coming in from the side and damaging my roof and ceiling, can stop. E. If Lisa is unable or unwilling to perform this task, the court should hold her in contempt and penalize her daily in the amount of $1,000 and hold her accountable for the monetary damages required to engage a contractor to seal all the points of ingress of water along the party wall, and to put protection in place that prevents the extensive and ongoing damage to her property to stop spilling over onto mine. 6 6 of 7 FILED: NEW YORK COUNTY CLERK 12/14/2023 12:01 PM INDEX NO. 158574/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/14/2023 Exhibit F is an email from City’s attorney conveying that DOB’s “most recent hold on its demolition order at 451 Convent Ave has expired, and the renewal request was denied due to lack of work at the property. ” The above mentioned e-mail clearly shows wilful negligence on part of Lisa to begin work even though she has obtained all necessary Department of building permits. Iii. The Third Prong of The Order To Show Request Must Also Be Granted Provided The Above-Mentioned Status Of DOB. Staying and Vacating demolition order issued by the Defendant, The New York City Department of Buildings must be granted as discussed above and for the reasons set forth especially, both Silversmith and DOB has conceded that the building can be rehabilitated. The City has failed to provide evidence to support finding that the building must be demolished for public safety. City fails to attach affidavit or other documentary evidence to support its claim for demolition. CONCLUSION For the foregoing reasons, Plaintiffs’ emergency order to show cause be granted in its entirety, along with such and further relief as the court deems proper. Dated: December 14, 2023 New York, NY Singh & Rani, LLP By: _______________________________ REENA RANI, ESQ. Attorneys for Plaintiff 5 Penn Plaza, 23rd Floor New York, NY 10001 212-729-6920 rrani@singhranilaw.com 7 7 of 7