Opinion
Index No. 004586/2021
03-11-2022
COLUMBUS MONUMENT CORPORATION, Nicholas J. Pirro, Bob Gardino, Joanne Gardino, James Albanese, Mike Albanese, Katie Albanese, Mary Emily Alibrandi, Silvio and Lauren Ascenzo, Brenda Wendy Lee Bousfield, Andrea Bucci, Angelo and Margaret Chiodo, Joan Christensen, Gabriel DiGenova, Peter DiGenova, Gene Fisch, Andre Grasso, Kevin Kane, Shannon Kennedy, Bille Kinne, Joe Lepiane, Ted Massey, Randy Potter, Joseph Russo, Gerarda Scuderi, Charles Tremper, and John Vigliotti, Petitioners, v. CITY OF SYRACUSE, Ben Walsh, individually and as Mayor of the City of Syracuse, Respondents.
Tony Pietrafesa, Esq., Anthony J. Paris, Esq., for all Petitioners. John DeFrancisco, Esq., for Petitioner Columbus Monument Corporation. John G. Powers, Esq., Mary L. D'Agostino Esq., Todd Long, Esq., for Respondents.
Tony Pietrafesa, Esq., Anthony J. Paris, Esq., for all Petitioners.
John DeFrancisco, Esq., for Petitioner Columbus Monument Corporation.
John G. Powers, Esq., Mary L. D'Agostino Esq., Todd Long, Esq., for Respondents.
Gerard J. Neri, J. On May 16, 2021, Petitioners Columbus Monument Corporation, Nicholas J. Pirro, Bob Gardino, Joanne Gardino, James Albanese, Mike Albanese, Katie Albanese, Mary Emily Alibrandi, Silvio and Lauren Ascenzo, Brenda Wendy Lee Bousfield, Andrea Bucci, Angelo and Margaret Chiodo, Joan Christensen, Gabriel DiGenova, Peter DiGenova, Gene Fisch, Andre Grasso, Kevin Kane, Shannon Kennedy, Bille Kinne, Joe Lepiane, Ted Massey, Randy Potter, Joseph Russo, Gerarda Scuderi, Charles Tremper, John Vigliotti (collectively the "Petitioners") filed a Petition seeking, inter alia , an order precluding Respondents City of Syracuse (the "City") and Ben Walsh, individually and as Mayor of the City of Syracuse (the "Mayor", and collectively as the "Respondents") from taking any action to remove the Columbus Monument (the "Monument") from its present location (see Petition, NYSCEF Doc. No. 1). The Court set a conference to determine a briefing schedule (NYSCEF Doc. No. 11). At the June 8, 2021 conference, a briefing schedule was agreed to and signed by the Court (NYSCEF Doc. No. 17). On July 14, 2021, an amended Petition was filed (NYSCEF Doc. No. 18). On August 9, 2021, Respondents requested a two-week extension to file and serve their answer and motion to dismiss (NYSCEF Doc. No. 27). The Court granted same (NYSCEF Doc. No. 28). On August 30, 2021, pursuant to CPLR §§ 7804(f) and 409(b) Respondents filed a motion to dismiss (see Notice of Motion, NYSCEF Doc. No. 30). Respondents also filed their Answer (see Answer, NYSCEF Doc. No. 48). On September 9, 2021, the Onondaga Nation (the "Nation") filed a motion seeking leave to appear as amicus curiae (see Notice of Motion, NYSCEF Doc. No. 98). On September 15, 2021, the Court held a conference and again adjusted the briefing schedule in light of the Nation's motion (see NYSCEF Doc. No. 106). The Court denied the relief sought by the Nation (see Decision, NYSCEF Doc. No. 118). At the request of Parties, the Court further amended the briefing schedule (NYSCEF Doc. No. 120). On November 12, 2021, Petitioners responded to the Respondents’ motion to dismiss (see Affidavit in Opposition, NYSCEF Doc. No. 122). Petitioners assert that Petitioner Columbus Monument Corporation (the "Corporation") is "a corporation organized and existing under the laws of New York State the successor interest to the Columbus Monument Association (the "Association") [and] has a vested interest in the City maintaining and preserving the Monument" (see Amended Petition, NYSCEF Doc. No. 18, ¶12). The individual Petitioners are residents and/or taxpayers of the City of Syracuse or Onondaga County and many financially contributed to the preservation of the Monument undertaken in the early nineties (ibid , ¶13). Petitioners assert that nearly three million individuals immigrated from Italy to the United States of America between 1900 and 1915, with further immigration occurring post-World War I (ibid , ¶16). Petitioners further assert that in 1897 Italian-Americans accounted for approximately four percent of the City's population, and by 2010 that number reached an estimated twenty-two percent (ibid , ¶17). Petitioners state that Italian-Americans were subjected to bigotry and discrimination, including lynching and targeted by President Roosevelt during World War II (ibid , ¶¶18 & 19). In 1934, "Italian-American immigrants and citizens of Italian descent, embodied by the Columbus Monument Association, bestowed upon the City a monument including a statue of Christopher Columbus. The City accepted the Monument and placed it in St. Mary's Circle" (ibid , ¶21). Beginning in 1934, the Association, and subsequently the successor Corporation, holds an annual wreath-laying ceremony at the Monument on Columbus Day (ibid , ¶24). Petitioners assert the "purpose of the ceremony is to remember the coming of Italian Americans to Syracuse and to celebrate the achievement of the Italian American community in Syracuse, including honoring a local person of Italian descent for his or her personal achievements and contributions to Central New York (ibid , ¶25). Petitioners further assert that the City placed the Monument and fourteen other edifices in the National Register of Historic Places as the Montgomery Street-Columbus Circle Historic District (ibid , ¶26). The Monument is also listed on the New York State Register of Historic Places (ibid , ¶28). The City established the Columbus Circle Preservation District (ibid , ¶29). In 2007, the City enacted a Public Art Ordinance, whish is to encourage and facilitate the installation of public art and maintain an inventory of Syracuse's public art (ibid , ¶30). The Monument is listed as an item of the City's permanent public art collection (ibid , ¶31).
Petitioners assert that in 1990, the City and the Association sought to restore the Monument and conserve Columbus Circle (ibid , ¶32). Ultimately, the Monument and Columbus Circle were renovated through the financial resources of New York State, the City, and the Association (ibid , ¶33). The New York State portion of monies came from the NYS Environmental Quality Bond Act of 1986 (ibid , ¶34). In 1990, the City entered into a contract with New York State (ibid , ¶35; see also the "Contract", NYSCEF Doc. No. 19). The Contract required the City to raise matching funds and granted the State a protective easement (see Amended Petition, NYSCEF Doc. No. 18, ¶¶36 & 37). The protective easement was recorded in the Onondaga County Clerk's Office (ibid , ¶37; see also the "Easement", NYSCEF Doc. No. 20). Petitioners assert based upon the City's promise to maintain the Monument and Columbus Circle, the Association raised and contributed $167,000.00 to the renovation project (ibid , ¶38). By resolution sponsored by Councilor Carni and unanimously approved by the Common Council, the City accepted the funds (see the "Resolution", NYSCEF Doc. No. 23). The Resolution provides:
"that this Common Council hereby authorizes the acceptance of funds in an amount not to exceed $167,000.00 from the Columbus Monument Memorial Association as the Association's contribution to the restoration of the Columbus monument and fountain; and the Commissioner of Finance be and he is authorized to deposit the same in an appropriate account to be determined by him; a New York State grant in the amount of $200,000.00 and City funds and services in the amount of $137,500.00 will pay the remainder of the projected project cost of $505,000.00" (ibid ).
Petitioners assert that Respondents have broken the promise to maintain the Monument, vis-à-vis the comments and acts of the Mayor and other City officials (see Amended Petition, NYSCEF Doc. No. 18, ¶¶39-45).
On March 22, 2021, the Mayor executed a document purporting to terminate the preservation covenant, and same was recorded in the Onondaga County Clerk's Office (ibid , ¶¶46-47; see also Termination of Preservation Covenant, the "Termination", NYSCEF Doc. No. 24). The Termination states:
"WHEREAS, the term of the Covenant was ‘23 years or the useful life of the improvement, made with funds provided pursuant to this agreement. ’ This twenty-three (23) year term ran from November 2, 1995 through November 1, 2018" (see Termination of Preservation Covenant, NYSCEF Doc. No. 24, emphasis in original ).
Petitioners note that the Covenant provides as follows:
"This restriction shall be binding upon the [City of Syracuse] for 23 years or the useful life of the improvement, made with fund provided pursuant to this agreement, whichever is longer" (see Covenant, NYSCEF Doc. No. 20).
Petitioners assert Respondents purposefully misrepresented the term of the Covenant by omitting the words "whichever is longer" (see Amended Petition, NYSCEF Doc. No. 18, ¶51). Petitioners assert that the State, based upon Respondents’ misrepresentation, waived its right to enforce (ibid , ¶52).
Petitioners assert that the Mayor lacks the authority to unilaterally remove the Monument. Petitioners refer to the Syracuse City Charter and the powers enumerated for the position of mayor (ibid , ¶¶59-60). Petitioners further note that the Syracuse City Charter provides for a parks commissioner who acts in the mayor's place concerning City parks (ibid , ¶61). Petitioners assert that the City Charter does not give the Mayor authority to demolish, remove, or otherwise alter the Monument (ibid , ¶62).
Petitioners argue that the City assumed a duty to preserve the Monument. The Covenant required the City to keep and maintain the Monument "in reasonably good order, condition and repair" (ibid , ¶70). The Covenant's term is twenty-three years or the useful life of the monument, whichever is longer (ibid , ¶71). The City's final report on the renovation of the Monument
"Perhaps the most important success achieved through the scope of this renovation project will never be seen or appreciated by the park user. Through careful selection and use of contemporary construction materials and methods, the structural attachment and reinforcement details used will ensure the long term integrity of this restoration project. Additionally, redesign of the fountain plumbing system will allow future repair or replacement without excavation or removal of site features" (ibid , ¶72; see also Final Report, NYSCEF Doc. No. 21, p. 3 of 20).
Petitioners assert this exemplifies the City's "commitment to the long-term nature of the renovation" (see Amended Petition, NYSCEF Doc. No. 18, ¶72). Petitioners assert the "physical condition (or usefulness) of the Monument is not in dispute", and further, that the physical condition of the Monument is not a factor in Respondents’ attempt to modify the Monument (ibid , ¶¶73 & 76). Petitioners assert the Covenant remains in effect and continues throughout the useful life of the Monument (ibid , ¶77). The Covenant further provides that in case of "casualty or other emergency", the City is to restore the Monument to its 1994 condition (ibid , ¶81). Petitioners state they are third-party beneficiaries of the City's expressly written duties to maintain the Monument for the entirety of its useful life (ibid , ¶87). Petitioners assert the Respondents are prohibited from carrying out their threatened conduct of altering the Monument (ibid , ¶90).
Petitioners seek an order of the Court declaring the Termination of Preservation Covenant null and void. Petitioners assert the Termination materially misstates the term of the Covenant by omitted words "whichever is longer" (ibid , ¶¶101-103). Petitioners assert the filing of the Termination amounts to the filing of a false document and falls within the ambit of Penal Law §§ 175.05 & 175.30 (ibid , ¶¶104-106). Petitioners pray this Court grant an order declaring the Termination null and void, and further directing the Onondaga County Clerk to expunge it from her records (ibid , ¶108).
Petitioners assert the Mayor's actions have no support in law. As noted, the Mayor's powers are delineated in the City Charter (ibid , ¶109). Petitioners assert the Mayor's actions violate the Syracuse Public Art Ordinance (ibid , ¶¶110-120). Petitioners assert the Respondents are without authority to carry out their threatened acts (ibid , ¶125). Petitioners further assert Respondents’ actions violate the Landmark Preservation Law (ibid , ¶¶126-127). Petitioners conclude relative to this point:
"Changes in certain community members’ interpretation and/or understanding, sensitivity and historical perspective does not constitute, in accordance with the Landmark Preservation Ordinance, a lawful basis for a material change to, or the removal of the Monument. Respondents should be prohibited from asking the Board for permission to destroy the Monument" (ibid , ¶131).
Petitioners state the City has an affirmative duty under the City Charter to protect the Monument. Specifically, Section 8-111 of the City Charter provides:
"The council and the several members thereof, and all officers and employees of the city shall continue pursuant to law to be trustees of the property, funds and effects of said city respectively, so far as such property, funds and effects are or may be committed to their management or control, and every taxpayer residing in said city shall continue to be a cestui que trust in respect to the said property, funds and effects respectively; and any co-trustee or any cestui que trust shall
be entitled as against said trustees and in regard to said property, funds and effects to all the rights, remedies and privileges provided by law for any co-trustee or cestui que trust; to prosecute and maintain an action to prevent waste and injury to any property, funds and estate held in trust; and such trustees are hereby made subject to all the duties and responsibilities imposed by law on trustees, and such duties and responsibilities may be enforced by the city or by any co-trustee or cestui que trust aforesaid." (Syracuse City Charter, § 8-111).
Petitioners argue that the City and the Mayor holds the Monument in trust for Petitioners and other City residents (see Amended Petition, NYSCEF Doc. No. 18, ¶135). Petitioners allege that the Mayor's declaration to remove the Monument violates this obligation and amounts to waste (ibid , ¶¶137-138). Petitioners allege the Mayor's action, including the use of tax-dollars to pay for outside counsel, constitutes an impermissible use of public funds for personal political gain (ibid , ¶¶139-150). Petitioners pray this Court grants an order, inter alia , precluding the removal of the Monument.
By Notice of Motion dated August 30, 2021, Respondent City of Syracuse and Mayor Ben Walsh move to dismiss the Amended Petition pursuant to CPLR §§ 7804(f) and 409(b) (see Notice of Motion, NYSCEF Doc. No. 30). Respondents supported the motion with the affidavits of Kate Auwaerter, the Preservation Planner and Public Art Coordinator for the City (NYSCEF Doc. No. 31), Brad O'Connor, the City's Commissioner of Finance (NYSCEF Doc. No. 32), Heather Lamendola, Assistant Director of the Syracuse-Onondaga County Planning Agency (NYSCEF Doc. No. 33), Julie LaFave, Parks Commissioner (NYSCEF Doc. No. 34), and the affirmation of Meghan Ryan, Assistant Corporation Counsel (NYSCEF Doc. No. 37).
The Respondents also submitted a Verified Answer to Amended Article 78 Petition (NYSCEF Doc. No. 48). The Respondents also presented a Counterstatement of Material Facts (ibid ). The Respondents note that the Monument is located at what is colloquially known as Columbus Circle, but is officially known as St. Mary's Circle and previously as Library Circle (ibid , ¶162). Regardless of the name used, the Monument stands on City-owned property (ibid , ¶163). The Respondents assert that Petitioner Columbus Monument Corporation was formed on September 6, 2018 and may not exercise any rights of any previous entity as Columbus Monument Corporation is not the legal successor to the Columbus Monument Association (ibid , ¶¶168-169). The Respondents note that other statuary have been removed by the City (ibid , ¶176-184).
The Respondents note that in 1987, the Monument was characterized as the "most severely deteriorated monument" in the City (ibid , ¶¶185-186). The estimated repair costs of the Monument and surrounding Circle was $450,000.00 (ibid , ¶187). The City applied for a State Environmental Quality Bond Act ("EQBA") grant to cover the repair costs (ibid , ¶188). The application was denied (ibid , ¶192). The Columbus Monument and Memorial Association then set out to raise the necessary funds to repair the Monument (ibid , ¶193). Respondents reiterate that the Columbus Monument and Memorial Association is different entity from Petitioner Columbus Monument Association (ibid , ¶194). The City submitted a second application for an EQBA grant, and on March 21, 1989 then-Governor Mario Cuomo announced the Monument would be one of the historic preservation projects receiving State funds (ibid , ¶195). The City Common Council passed ordinances to issue general obligation serial bonds not to exceed $450,000.00 for the restoration work and noted that $200,000.00 would be reimbursed by the State through the EQBA grant, the Columbus Monument and Memorial Association committed to reimburse $112,500.00, and the City would be responsible for $137,500.00 (ibid , ¶196). A second ordinance authorized the Commission of Purchase to enter into contract to carry out the renovation (ibid ). Respondents note that as part of the EQBA grant, the City had to grant an easement or preservation covenant, which provided the restriction lasted "23 years or the useful life of the improvement" (the "Preservation Covenant", ibid , ¶¶198-199). The Respondents argue the Preservation Covenant expired by its own terms on November 1, 2018 (ibid , ¶203).
The Respondents allege the Monument is controversial (ibid , ¶¶205-207). The Respondents recite the steps they have taken regarding the future of the Monument (ibid , ¶¶208-228). The Respondents assert that there are steps to be taken before a final determination can be made about the future of the Monument (ibid , ¶229-245).
Respondents argue the Petition must be dismissed as premature (ibid , ¶246, et seq. ). "Generally, a CPLR article 78 proceeding may not be used to challenge a nonfinal determination by a body or officer" ( Ogden Citizens for Responsible Land Use, Ltd. v. Plan. Bd. of Town of Ogden , 224 A.D.2d 921, 921, 637 N.Y.S.2d 582 [Fourth Dept. 1996] ). Respondents note that the Amended Petition specifically seeks intervention against "threatened actions" (see Verified Answer, NYSCEF Doc. No. 48, ¶250). Respondents assert that the Amended Petition does not identify a final agency determination which can be viably challenged (ibid , ¶251). Respondents state "[t]he mayoral press release on October 9, 2020 that Petitioners claim is the accrual event for their Petition purported only ‘to announce a path forward’ regarding St. Mary's Circle" (ibid , ¶254). Respondents assert the action is premature.
Respondents argue Petitioners lack standing. Respondents argue the Amended Petition merely states that the Columbus Monument Corporation has a "vested interest in the City maintaining and preserving the Monument" and proffers no other facts to support standing (ibid , ¶267). Respondents further note the Amended Petition merely states the individual Petitioners are residents and/or taxpayers and that some financially contributed to the early 1990s restoration (ibid , ¶269). Respondents allege the failure to assert standing requires dismissal pursuant to CPLR § 3211(a)(3) (ibid , ¶274).
Respondents argue that the Amended Petition's claim that the City lacks the authority in law to redesign its own municipal park fails to state a cause of action and must be dismissed. "Neither the Art Commission nor anyone else, including this plaintiff, can compel the Board of Estimate to restore an old fort at a cost of $200,000, nor can it compel the continuation and usage of a building for a purpose which the governing body of the city no longer recognizes as desirable" ( Hamilton v. Moses , 275 A.D. 76, 81, 87 N.Y.S.2d 717 [First Dept. 1949] ). Respondents also note that the City Charter expressly provides the City with the authority to manage its own property (see Verified Answer, NYSCEF Doc. No. 48, ¶¶280-282). Respondents argue the original 1934 bequeath of the Monument contained no restrictions (ibid , ¶285). Respondents proffer any argument that the Mayor lacks legal authority over the personal and real property of the City is without merit (ibid , ¶296). Respondents assert the Petitioners lack standing to enforce the Preservation Covenant. Respondents note the Preservation Covenant was between the State and the City (ibid , ¶298). Respondents assert Petitioners do not fall into any of the recognized categories for third-party beneficiaries (see generally Nature Conservancy v. Congel , 253 A.D.2d 248, 689 N.Y.S.2d 317 [Fourth Dept. 1999] ). "If the covenant is silent; if there is no mutual agreement or understanding between the various owners creating an easement; if there is nothing in the surrounding circumstances from which mutual rights can be fairly inferred, then no action can be maintained" ( Equitable Life Assur. Soc. v. Brennan , 148 N.Y. 661, 672, 43 N.E. 173 [1896] ). Respondents assert Petitioners lack standing to enforce the Preservation Covenant. Respondents argue that even if Petitioners do have standing to enforce the Preservation Covenant, it expired November 1, 2018 (see Verified Answer, NYSCEF Doc. No. 48, ¶314). Further, Respondents assert that Petitioners have failed to state a cause of action relative to the Preservation Covenant in that Petitioners have misinterpreted the Preservation Covenant (ibid , ¶334, et seq. ).
Respondents assert that the Amended Petition's "public trust" claim is without merit as there is no evidence the Respondents are wasting the Monument (ibid , ¶383). "Under the public trust doctrine, a land owner cannot alienate land that has been impliedly dedicated to a public use without obtaining the approval of the legislature" ( Glick v. Harvey , 25 N.Y.3d 1175, 1180, 15 N.Y.S.3d 733, 36 N.E.3d 640 [2015] ). Respondents argue that a change in the character of a property does not arise to a violation of the public trust doctrine (see Verified Answer, NYSCEF Doc. No. 48, ¶390). Respondents argue Petitioners’ public trust doctrine must be dismissed as it fails to state a claim.
Respondents argue that Petitioners’ third and sixth causes of action must be dismissed as Petitioner's failed to comply with the City's notice of claim requirements (ibid , ¶412, et seq. ). Respondents’ attorney affirmation in support of motion (NYSCEF Doc. No. 88) and memorandum of law in support of motion (NYSCEF Doc. No. 89) mirror the Verified Answer.
In opposition to the Respondents’ motion to dismiss, Petitioners proffered the affidavit of Petitioner Nicholas J. Pirro (NYSCEF Doc. No. 122), Virginia Lostumbo (NYSCEF Doc. No. 127), Robert and Joanne Gardino (NYSCEF Doc. No. 128), Wendy Brenda Lee Bousfield (NYSCEF Doc. No. 129), Kevin Kane (NYSCEF Doc. No. 130), Kevin Kane (NYSCEF Doc. No. 131), Tarky Lombardi, Jr. (NYSCEF Doc. No. 132), and James Albanese (NYSCEF Doc. No. 133). Each of the aforementioned Petitioner affidavits assert the claimed basis for standing.
Petitioners further oppose the motion to dismiss via memorandum of law (NYSCEF Doc. No. 136). Petitioners argue the City's notice of claim law does not apply (ibid , p. 4). Petitioners note that Assistant Corporation Counsel Meghan Ryan represented to Jean Egenhofer, Regional Grants Administrator for the New York State Parks, Recreation and Historic Preservation, that: "The City recently made the decision to remove the Columbus Statue and modify Columbus Circle" (see Ryan Letter, NYSCEF Doc. No. 42, p. 3 of 4). Petitioners assert the Respondents’ argument that no final determination has been made is insincere (see Memorandum of Law, NYSCEF Doc. No. 136, p. 5). Regardless of the final determination argument, Petitioners seek a writ of prohibition, as is proper pursuant to Article 78 (ibid ). Further, Petitioners seek relief via CPLR § 3001 for a declaration, inter alia , that Petitioners are third-party beneficiaries under the restoration agreements executed in the 1990s (ibid , p. 6). Petitioners assert the Amended Petition is ripe for judicial intervention.
Petitioners further note that City Charter § 8-111 specifically authorizes Petitioners to prosecute and maintain the instant action (see City Charter § 8-111). Petitioners note that Petitioners Pirro, Gardino, Alibrandi, Ascenzo, Bousfield, Christensen, DiGenova, Kane, Kennedy, Kinne, Lepiane, Russo, Scuderi, Tremper, and Vigliotti each reside in and pay taxes to the City, while Petitioners Albanese and Chido own property in and pay taxes to the City (see Memorandum of Law, NYSCEF Doc. No. 136, p. 8). Petitioners assert they have standing.
Petitioners assert that Petitioner Columbus Monument Corporation (the "Corporation") is the successor in interest to the Columbus Memorial Monument Association Ltd (the "Association", ibid , p. 9). Petitioner Lostumbo states she was the treasurer for the Association and is currently the treasurer for the Corporation (see Lostumbo Affidavit, NYSCEF Doc. No. 127, ¶¶2-3). Lostumbo further states that the Association closed its bank account and its funds were then deposited into the Corporation's bank account on April 24, 2019 (ibid , ¶9). Petitioners argue the law recognizes a consolidation of two entities when the new entity takes on the business of the old entity (see generally R & D Elecs., Inc. v. NYP Mgmt., Co. , 162 A.D.3d 1513, 1515, 78 N.Y.S.3d 834 [Fourth Dept. 2018] ). As successor in interest, Petitioners argue the Corporation has standing to prosecute the instant matter.
Petitioners assert they can enforce the contract and Preservation Covenant as third-party beneficiaries. Petitioners note the Association raised $167,000.00 of matching funds used for the 1990s restoration (see Memorandum of Law, NYSCEF Doc. No. 136, pp. 13-14). "Parties such as the plaintiffs herein who are asserting third-party beneficiary rights under a contract must establish (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [their] benefit and (3) that the benefit to [them] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [them] if the benefit is lost" ( Logan-Baldwin v. L.S.M. Gen. Contractors, Inc. , 94 A.D.3d 1466, 1468, 942 N.Y.S.2d 718 [Fourth Dept. 2012], internal citations and quotations omitted ). Petitioners argue the contract and Preservation Covenant satisfy the first prong, that Petitioners, being the Corporation and certain individual Petitioners, contributed money to the restoration satisfying the second prong, and having contributed money, have a direct benefit, satisfying the third prong. Further, Petitioners note the Preservation Covenant is not independent of the contract. The City having received the benefit of the funds, cannot now simply terminate its obligations under the contract.
Petitioners further argue the Respondents have consistently and improperly ignored the phrase "whichever is longer" included in the Preservation Covenant (see Memorandum of Law, NYSCEF Doc. No. 136, p. 19). Petitioners note the purpose of the Preservation Covenant "is to secure the preservation of historic resources and to ensure that a public benefit is derived from the expenditure of public funds" (see Preservation Covenant, NYSCEF Doc. No. 20, ¶3). Petitioners argue the City's obligations last more than the twenty-three years cited by Respondents.
Petitioners assert Respondents may not remove the Monument merely because of personal tastes (see Memorandum of Law, NYSCEF Doc. No. 136, p. 21). Petitioners assert Respondents have misconstrued the Amended Petition, as Petitioners do not seek to block new works at St. Mary's Circle, only that Petitioners seek to preserve the Monument (ibid , p. 22). While acknowledging this is not a First Amendment Religious Expression case, Petitioners proffer Am. Legion v. Am. Humanist Ass'n , ––– U.S.––––, 139 S. Ct. 2067, 204 L.Ed.2d 452 (2019) as an analogous case. Petitioners pray this Court deny the motion to dismiss and grant the relief requested in the Amended Petition.
Respondents replied in further support of their motion (see Memorandum of Law in Reply, NYSCEF Doc. No. 141). Respondents assert that Petitioners have confused the standards in a CPLR § 3211 motion for a plenary action and an Article 78 action (ibid , p. 4).
"It is well settled that ‘[a] CPLR article 78 proceeding is a special proceeding ... and as such may be summarily determined upon the pleadings, papers, and admissions to the extent that no triable issues of fact are raised ... Thus, every hearing of a special proceeding is equivalent to the hearing of a motion for summary judgment and makes a formal motion for same unnecessary’ " ( Matter of Buckley v. Zoning Bd. of Appeals of City of Geneva , 189 A.D.3d 2080, 2081, 139 N.Y.S.3d 732 [Fourth Dept. 2020] ).
Respondents further proffer it is inappropriate to convert an Article 78 proceeding to a plenary or declaratory action (see generally Concourse Rehab. & Nursing Ctr., Inc. v. Shah , 161 A.D.3d 669, 669, 78 N.Y.S.3d 60 [First Dept. 2018] ). Respondents further assert that when challenging a public officer's action or inaction, the sole remedy lies in Article 78 (see NY Civ. Liberties Union v. State , 4 N.Y.3d 175, 183-184, 791 N.Y.S.2d 507, 824 N.E.2d 947 [2005] ). Respondents assert this is solely an Article 78 proceeding and must be adjudicated as such.
Respondents reiterate their arguments regarding the necessity of a final determination and how the instant action is premature (see Memorandum of Law in Reply, NYSCER Doc. No. 146, p. 5, et seq. ). Respondents reiterate their standing arguments (ibid , p. 16, et seq. ). Respondents reiterate their arguments concerning the ability of the City to redesign its own parks (ibid , p. 29, et seq. ). Respondents reiterate their arguments that Petitioners fail to state a claim under City Charter § 8-111 (ibid , p. 32, et seq. ). Respondents reiterate their arguments concerning the expiration of the Preservation Covenant (ibid , p. 39, et seq. ).
Petitioners filed a sur-reply (NYSCEF Doc. No. 150). The Court held oral arguments on January 10, 2022.
Discussion:
There are three branches of government under our republican system: legislative, executive, and judicial. These branches are in existence in part for check and balances. The judiciary, and this Court in particular, will look only to the law of this case and rule accordingly.
Respondents demand the Petition be dismissed because Petitioners lack standing. "Whether a person seeking relief is a proper party to request an adjudication is an aspect of justiciability which, when challenged, must be considered at the outset of any litigation" ( Socy. of Plastics Indus., Inc v. County of Suffolk , 77 N.Y.2d 761, 769, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [1991] ). In order to determine whether the Petitioners have standing, it must be established what the relief the Petitioners are seeking. The Amended Petition is a hybrid Article 78/Declaratory Judgment action (see Amended Petition, NYSCEF Doc. No. 18). Petitioners desire an order of this Court prohibiting "Respondents from altering or removing the Christopher Columbus Monument at St. Mary's Circle", and declaring pursuant to CPLR § 3001 "that Respondents are without legal authority to alter or remove the Monument" and "that the threatened action and action in furtherance thereof by Mayor Ben Walsh constitute a breach of trust under the City Charter" and "that a so called Termination of Covenant filed on March 22, 2021 null and void and expunged from the records of the Onondaga County Clerk" (ibid , pp. 1-2).
Respondents assert that a CPLR § 7803(2) writ of prohibition is not available to Petitioners. Pursuant to CPLR § 7803(2), Petitioners seek a writ of prohibition preventing the Respondents from seeking the approval of the Syracuse Public Art Commission and a Certificate of Appropriateness from the Syracuse Landmarks Preservation Board.
"A writ of prohibition may be obtained only when a clear legal right of a petitioner is threatened by a body or officer acting in a judicial or quasi-judicial
capacity without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has. It may not issue against legislative, executive, or ministerial action" ( Morgenthau v. Erlbaum , 59 N.Y.2d 143, 147, 464 N.Y.S.2d 392, 451 N.E.2d 150 [1983], citations omitted ).
Petitioners would not be aggrieved by the mere seeking of the approval of the Syracuse Public Art Commission or a Certificate of Appropriateness from the Syracuse Landmarks Preservation Board. If Respondents do seek at some point the approval of the Syracuse Public Art Commission or a Certificate of Appropriateness from the Syracuse Landmarks Preservation Board and Petitioners feel they are aggrieved by the decisions respectively rendered, then at that time they may make the appropriate application appealing those determinations. A writ of prohibition is not appropriate for the relief Petitioners seek and the Respondents’ motion in this part is granted.
As noted, this is a hybrid action consisting of both an Article 78 and a declaratory judgment action.
"Where, as here, the parties have differing interpretations of their obligations under a contract and the contract does not delineate[ ] the agreed procedure to be followed for resolving disputes arising [between the parties, a cause of action for declaratory relief "may be an appropriate vehicle for settling justiciable disputes as to contract rights and obligations ( Burrstone Energy Ctr., LLC v. Faxton-St. Luke's Healthcare , 162 A.D.3d 1554, 1554-1555, 79 N.Y.S.3d 779 [Fourth Dept. 2018] ).
Certainly some of the Petitioner have rights arising from the City's acceptance of funds for the 1990s restorations as memorialized in the Common Council Ordinance and subsequent contracts and covenants. Further, as will be addressed below, there is a question in whether the Respondents did come to a final determination, thus allowing Petitioners to move forward under CPLR § 7803(3).
At a minimum, the Court finds that Petitioners Nick Pirro (see Affidavit of Pirro, NYSCEF Doc. No. 122, ¶36), James Albanese (see Affidavit of James Albanese, NYSCEF Doc. No. 133, ¶2), and Tarky Lombardi, Jr. (see Affidavit of Tarky Lombardi, Jr, NYSCEF Doc. No. 132, ¶3). have standing as each gave money to the 1990s restoration. On October 15, 1991, the City Common Counsel passed Ordinance 454-1991 which provided:
"BE IT ORDAINED, that this Common Council hereby authorized the acceptance of funds in an amount not to exceed $167,500.00 from the Columbus Monument Memorial Association as the Association's contribution to the restoration of the Columbus monument and fountain; and the Commissioner of Finance be and he is authorized to deposit the same in an appropriate account to be determined by him; a New York State grant in the amount of $200,000.00 and City funds and services in the amount of $137,500 will pay the remainder of the projected project cost of $505,000.00" (see Ordinance, NYSCEF Doc. No. 23).
The City accepted the donated funds of Pirro, Albanese, and Lombardi (collectively the "Donating Petitioners"), among others, for the express purpose of restoring the Monument, and the Donating Petitioners have standing to challenge any act or imminent act which may affect the use of their donated funds. Donating Petitioners have an injury in fact in that they would not have donated money had they known an individual could remove the Monument (see e.g., Pirro Affidavit, NYSCEF Doc. No. 122, ¶36). The terms by which the funds were accepted by the City were expressed in the contract with the State, and specifically the preservation aspect (NYSCEF Doc. No. 19, ¶13), as well as the Preservation Covenant itself (NYSCEF Doc. No. 20). The Preservation Covenant's term is for "23 years or the useful life of the improvement, made with funds provided pursuant to this agreement, whichever is longer" (ibid , ¶5). As the State has seemingly declined enforcement of this provision, the Donating Petitioners have standing to enforce the Protective Covenant (see generally Assoc. Alumni of the Gen. Theological Seminary of the Protestant Episcopal Church in the United States of Am. v. Gen. Theological Seminary of the Protestant Episcopal Church in the United States , 163 N.Y. 417, 422, 57 N.E. 626 [1900] ; see also Smithers v. St. Luke's-Roosevelt Hosp. Ctr. , 281 A.D.2d 127, 136, 723 N.Y.S.2d 426 [2001] ). The Donating Petitioners having given their money to support the restoration of the Monument have the standing to protect those contributions (cf. Ladies Memorial Association, Inc. v. City of Pensacola, Florida , 2020 WL 5237742 [N.D. Fla. 2020] and Sons of Confederate Veterans v. Newton County Board of Commissioners , 360 Ga.App. 798, 861 S.E.2d 653 [2021] where plaintiffs asserted general concerned citizen status, unlike the instant matter where certain Petitioners actually donated funds for the restoration of the Monument). Petitioners assert that Petitioners Pirro, Bob and Joanne Gardino, Michael Albanese, Kathryn Albanese, Mary Alibrandi, Silvio and Lauren Ascenzo, Brenda L. Bousfield, Angelo and Margaret Chiodo, Joan Christensen, Peter and Gabriel DiGenova, Kevin Kane, Shannon Kennedy, William Kinne, Joseph LePiane, Joseph Russo, Gerarda Scuderi, Charles Tremper, and John Vigliotti (collectively the "Property Owner-Petitioners") have standing as they own property and pay taxes to the City of Syracuse (ibid , ¶13). Petitioners assert as property owners and taxpayers, these Petitioners have pursuant to City Charter § 8-111. Respondents assert that in order to prosecute this matter, and thus have standing, Petitioners needed to assert "Fraud, collusion, corruption or bad faith" (see Montecalvo v. City of Utica , 170 Misc. 2d 107, 110-111, 647 N.Y.S.2d 445 [Sup. Ct. Oneida County 1996] aff'd 233 A.D.2d 960, 649 N.Y.S.2d 852 [Fourth Dept. 1996] ). Contrary to Respondents’ conventions, the Court finds Petitioners have sufficiently pleaded bad faith. The Preservation Covenant set forth the term as being "23 years of the useful life of the improvement, made with funds provided pursuant to this agreement, whichever is longer" (see Preservation Covenant, NYSCEF Doc. No. 20, ¶5). Petitioners assert that the Monument has not reached the end of its useful life, nor do Respondents claim that the Monument has reached the end of its useful life. The Court finds the Property Owner-Petitioners have standing.
Petitioners further assert that all Petitioners have standing. The Court of Appeals has stated that its "decisional law on standing treats it as a prudential issue focused on the enforcement of public rights — typically, whether a plaintiff has suffered some injury and ‘is arguably within the zone of interest to be protected by the statute’ or regulation" ( US Bank N.A. v. Nelson , 36 N.Y.3d 998, 1005, 139 N.Y.S.3d 118, 163 N.E.3d 49 [2020], citing Dairylea Coop., Inc. v. Walkley , 38 N.Y.2d 6, 9, 377 N.Y.S.2d 451, 339 N.E.2d 865 [1975] ). Taking Assistant Corporation Counsel Meghan Ryan letter at face value, much like the State did in rendering its decision, she represented to Jean Egenhofer, Regional Grants Administrator for the New York State Parks, Recreation and Historic Preservation, that: "The City recently made the decision to remove the Columbus Statue and modify Columbus Circle" (see Ryan Letter, NYSCEF Doc. No. 42, p. 3 of 4). Ryan makes clear by use of the past tense that the City "made" the decision. For purposes of Respondents’ motion to dismiss, the Court finds that Petitioners Columbus Monument Corporation, Gene Fisch, Andre Grasso, and Randy Potter do have standing to prosecute this matter.
Petitioners allege Columbus Monument Corporation is the successor in interest to the Association. "Black's Law Dictionary defines a corporate successor as ‘[a] corporation that, through amalgamation, consolidation, or other assumption of interests, is vested with the rights and duties of an earlier corporation’ " ( Fleet Natl. Bank v. Impol Seval Aluminum Rolling Mill Inc ., 192 A.D.3d 628, 631, 146 N.Y.S.3d 88 [First Dept. 2021], citing Black's Law Dictionary 1732 [11th ed. 2019]). Respondents allege there is no record with New York State corporation records evidencing this assertion. Petitioners allege that the Corporation has assumed the duties of the Association. In support of this contention, Petitioners submit the affidavit of Virginia Lostumbo, who was treasurer of both organizations (see Lostumbo Affidavit, NYSCEF Doc. No. 127). It is clear that as the Association wound down its operations, the Corporation supplanted it, thus satisfying the prongs articulated by the Fourth Department (see R & D Elecs., Inc. v. NYP Mgt., Co., Inc ., 162 A.D.3d 1513, 1515, 78 N.Y.S.3d 834 [Fourth Dept. 2018] ). The Corporation has standing.
Respondents further seek to dismiss the action alleging the matter is premature as there is no final determination. As noted above, this matter Assistant Corporation Counsel Meghan Ryan represented to Jean Egenhofer, Regional Grants Administrator for the New York State Parks, Recreation and Historic Preservation, that: "The City recently made the decision to remove the Columbus Statue and modify Columbus Circle" (see Ryan Letter, NYSCEF Doc. No. 42, p. 3 of 4). Respondents cannot have it both ways. They represented to the State that a final determination was made in order to secure the termination of covenant. Now, during the course of litigation, Respondents switch positions and state that the process is ongoing, and a final determination has yet to be made. Respondents motion to dismiss is denied.
Respondents ask that the Amended Petition be dismissed as the Petitioners’ claim that the City lacks the authority in law to redesign its own municipal park fails to state a claim. A review of the Amended Petition shows that the prayer for relief makes no such claim. The Petitioners seek through Article 78 and CPLR § 3001 to preserve the Monument (see Amended Petition, NYSCEF Doc. No. 18, p. 29). Respondents’ motion in this part is denied.
Respondents seek to dismiss the Amended Petition on the grounds that the Protective Covenant expired by its own terms and was "extinguished" by the State and that the Petitioners misinterpret the Protective Covenant, both based upon the term "useful life". In the first instance, the plain language of the Protective Covenant show it did not expire by its own terms.
"This restriction shall be binding upon the [City of Syracuse] for 23 years or the useful life of the improvement, made with funds provided pursuant to this agreement, whichever is longer" (see Covenant, NYSCEF Doc. No. 20).
Through their papers and during oral argument, Respondents went to great lengths to try and demonstrate that the Monument has surpassed its useful life. Attorney for Respondents stated:
"Useful life is an accounting term. It's regularly used. It's the period of depreciation for the value of the investment in the asset that is capable of, precisely, modification or precise quantification. And, by the way, it's 20 years based on our last regulation" (see Transcript, p. 37).
The Fourth Department has stated what depreciation is.
"Depreciation includes physical depreciation, functional obsolescence and economic obsolescence. Physical depreciation is wear and tear occasioned by use and the elements. Functional obsolescence is loss of value brought about by failure or inability to deliver full service. It includes any loss of value by reason of short-comings or undesirable features contained within the property itself Economic obsolescence is loss of value brought about by conditions that environ a structure, such as a declining location or the downgrading of a neighborhood resulting in reduced business volume" ( In re Putnam Theat. Corp. , 16 A.D.2d 413, 417, 228 N.Y.S.2d 93 [Fourth Dept. 1962] ).
The only depreciation applicable to the Monument is physical depreciation or "wear and tear occasioned by use and the elements" ( ibid. ). By using this definition, physical depreciation, even the Respondents concede the Monument is not beyond its useful life as they seek to repurpose the Monument "to best preserve and relocate the exiting Columbus Monument for continued display to City residents" (see Memorandum of Law, NYSCEF Doc. No. 89, Preliminary Statement, p. 7). If the Monument had exceeded its useful life to the point that it must be removed, then it would serve no purpose to move it to a new location "for continued display". Respondents’ motion in this part is denied. Respondents seek to dismiss the Petitioner's claim that Respondents are in violation of the Landmark Preservation Law. The Respondents assert this claim only highlights that the Amended Petition is premature as there is no final determination. As noted above, the City has already represented that a final determination was made to remove the Monument, therefore, this argument is without merit. Chapter 51 of the City's Code of Ordinances governs Public Art (see Code of Ordinances, Ch. 51). "The purpose of this chapter is to facilitate and encourage public art in the city of Syracuse by creating a streamlined application and review process" (see City Code of Ordinances, § 51-2). Further, a "person, partnership, corporation, limited liability company or other entity must complete a public art application, submit the public art application to the public art coordinator, and have the public art application approved by the public art commission before installing public art in the city of Syracuse (see City Code of Ordinances, § 51-4). Chapter 51 applies to the City of Syracuse (see City Code of Ordinances, § 51-6). As conceded by the Amended Petition, Chapter 51 does not provide for the removal or deaccession of artwork (see Amended Petition, NYSCEF Doc. No. 18, ¶120). The Respondents’ motion to dismiss the claims related to Chapter 51 governing public art is granted.
Respondents also seek dismissal of the Amended Petition as they assert that the claim that Respondents violated the Landmark Preservation Law demonstrates the Amended Petition is premature. As previously noted, the City has already represented that a final determination was made to remove the Monument, therefore, this argument is without merit. A Certificate of Appropriateness is necessary in order for any work to take place at the Monument (see City Zoning Ordinance, Part C, § VII, Art. 7). The Respondents admit they need a Certificate of Appropriateness "before any material change of appearance of" the Monument (see Auwaerter Affidavit, NYSCEF Doc. No. 31, ¶¶11-15). The motion to dismiss in this part is denied.
Respondents assert the Amended Petition failed to state a claim relative to the alleged violation of Section 8-111 of the City Charter, or the Public Trust Doctrine argument. Respondents declare "there is no document and not [a] shred of evidence indicating that the City has some future intent to ‘lay waste to’ or somehow destroy the Columbus Monument" (see Memorandum of Law, NYSCEF Doc. No. 89, p. 32). As previously noted, the City has represented that a final determination was made to remove the Monument, therefore this argument is without merit. Section 8-111 provides that the "council and the several members thereof, and all officers and employees of the city shall continue pursuant to law to be trustees of the property, funds and effects of said city" (see City Charter, § 8-111). Petitioners seek to prevent "waste and injury" to the Monument. The City has admitted it seeks to remove the Monument. Respondents’ motion is denied in this part.
Respondents seek to dismiss "Point 6" of the Amended Petition which asks the Court to enjoin Respondents from "using taxpayer money to support the task force work and defend this proceeding during an election cycle" (see Amended Petition, NYSCEF Doc. No 18, ¶150). At the time the Amended Petition was filed, Respondent Mayor Walsh was in the middle of a reelection campaign. The campaign concluded in November 2021 with the Mayor's reelection. The election having concluded, the request to prohibit the expenditure of taxpayer money during an election cycle is moot. Both the motion and the Amended Petition on this point are denied.
Regarding the merits of the Amended Petition, the Court having granted relief to Respondents relative to the Petitioners’ claim of relief under CPLR § 7803(2), the Amended Petition next seeks relief under CPLR § 7803(1) and (3). However, relief is only afforded when there is a "clear legal right to the relief demanded and there must exist a corresponding nondiscretionary duty on the part of the administrative agency to grant that relief" ( Sapienza v. City of Buffalo , 200 A.D.3d 1649, 155 N.Y.S.3d 868 [Fourth Dept. 2021] ). In support of this claim, Petitioners refer to Section 8-111 of the City Charter, which provides:
"The council and the several members thereof, and all officers and employees of the city shall continue pursuant to law
to be trustees of the property, funds and effects of said city respectively, so far as such property, funds and effects are or may be committed to their management or control, and every taxpayer residing in said city shall continue to be a cestui que trust in respect to the said property, funds and effects respectively; and any co-trustee or any cestui que trust shall be entitled as against
said trustees and in regard to said property, funds and effects to all the rights, remedies and privileges provided by law for any co-trustee or cestui que trust; to prosecute and maintain an action to prevent waste and injury to any property, funds and estate held in trust; and such trustees are hereby made subject to all the duties and responsibilities imposed by law on trustees, and such duties and responsibilities may be enforced by the city or by any co-trustee or cestui que trust aforesaid." (Syracuse City Charter, § 8-111).
Respondents have taken a very broad view and claim they have the right to determine how to administer parkland (see generally Union Sq. Park Community Coalition, Inc. v. New York City Dept. of Parks & Recreation , 22 N.Y.3d 648, 985 N.Y.S.2d 422, 8 N.E.3d 797 [2014] ). That is not the issue before the Court. What is before the Court is what to do with a particular asset of the City, namely the Christopher Columbus Statue. The City stated its decision to remove the Monument (see Ryan Letter, NYSCEF Doc. No. 42, p. 3 of 4). To be successful, Petitioners need to demonstrate more than an illegal act, they also need to demonstrate bad faith (see Chelnik v. Wagner , 3 Misc. 2d 227, 228-229, 149 N.Y.S.2d 317 [Sup. Ct. N.Y. County 1955] ). Bad faith is evidenced by the manner in which Respondents have attempted to unilaterally remove the statute. The 1990s restoration was completed due to the contribution of private funds from the Association. In order to accept and expend such private funds, the Common Council passed an ordinance (see Ordinance, NYSCEF Doc. No. 23). The doctrine of legislative equivalency "dictates that existing legislation be repealed or modified only by a legislative act equal to the procedure used to enact it" ( Matter of Brunswick Smart Growth, Inc. v. Town Bd. of Town of Brunswick , 51 A.D.3d 1119, 1120, 856 N.Y.S.2d 308 [Third Dept. 2008] ). There is no evidence in this record that the Mayor has sought permission or received approval from the Common Council to overturn their ordinance and remove the Monument (cf. Ladies Memorial Association, Inc. v. City of Pensacola, Florida , 2020 WL 5237742 [N.D. Fla. 2020] where city council voted to remove a cenotaph; cf. Sons of Confederate Veterans v. Newton County Board of Commissioners , 360 Ga.App. 798, 861 S.E.2d 653 [2021] where county board of commissioners voted to remove a Confederate monument). While this example of executive overreach may seem minor in comparison to recent examples by both Democratic and Republican administrations, it is nonetheless an overreach and an exemplar of bad faith. The Court finds that order pursuant to CPLR § 7803(1) and (3) is proper to require that Respondents maintain the Monument pursuant to the obligations imposed by City Charter § 8-111.
Petitioners further seek declaratory relief pursuant to CPLR § 3001, adjudging that Respondents have no legal right to alter the Monument or remove same or any part of it from its present place on Columbus Circle. "The general purpose of the declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations" ( Walsh v. Andorn , 33 N.Y.2d 503, 507, 355 N.Y.S.2d 329, 311 N.E.2d 476 [1974] ). Respondents have urged the Court to dismiss this portion of the action as unripe (see Church of St. Paul & St. Andrew v. Barwick , 67 N.Y.2d 510, 519, 505 N.Y.S.2d 24, 496 N.E.2d 183 [1986] ). As noted, there is a controversy in that the City has declared its decision to remove the Monument (see Ryan Letter, NYSCEF Doc. No. 42, p. 3 of 4). Petitioners assert that under the term of the 1990s restoration, the City is obligated to maintain the Monument. In order to receive the State funds, "[i]n order to assure the preservation of the historic resource" the contract required the City to provide an "easement or preservation restriction" (see Contract, NYSCEF Doc. No. 19, ¶13). Schedule A of the contract further provided that the City's share of the restoration was $242,093 (ibid , p. 21). In order to pay its share, the Common Council passed an ordinance authorizing the City to accept up to $167,500 from the Columbus Monument Association, and recognized that the State's share was $200,000 and the City's share was $137,500 (see Ordinance, NYSCEF Doc. No. 23). It is clear that the Petitioners have satisfied the test for third-party beneficiaries (see Logan-Baldwin v. L.S.M. Gen. Contractors, Inc. , 94 A.D.3d 1466, 1468, 942 N.Y.S.2d 718 [Fourth Dept. 2012] ). There is no dispute concerning the existence of the contract between the State and the City (see Contract, NYSCEF Doc. No. 19). The purpose of the contract was to preserve the "historic resource" or the Monument. The first whereas paragraph of the Project Agreement provides:
"[T]he preservation of the historical, architectural and cultural heritage of the State of New York is of inestimable educational value and significance, in that it provides us with a sense of orientation, civic identify and a means of understanding our past" (see Contract, NYSCEF Doc. No. 19).
In order to meet its financial burden under the contract, the Common Council accepted the funds of the Association, including the donations from some of the Petitioners. Further, the Covenant states that its purpose "is to secure the preservation of historic resources and to ensure that a public benefit is derived from the expenditure of public funds" (see Covenant, NYSCEF Doc. No. 20, ¶3). The benefit to the Petitioners is self-evident in the restoration of the Monument, to which some financially contributed. As third-party beneficiaries, they are entitled to enforce the terms of the Project Agreement, to include the Preservation Restriction contained in paragraph 13 and executed as the Preservation Covenant. Contrary to Respondents’ position, the idea that "historic resources" (see Preservation Covenant, NYSCEF Doc. No. 20) have a useful life of only twenty-three years is illogical. Merriam-Webster defines "historic" as "having great and lasting importance." Twenty-three years is clearly a floor and not a ceiling to define the Monument's useful life.
https://www.merriam-webster.com/dictionary/historic
As counsel for Respondents noted, the Monument is a bronze statue which could be in existence for thousands of years (see Transcript, p. 37). In Syracuse, the Hamilton White Monument at Firefighters Memorial Park was erected in 1905. The Soldiers and Sailors Monument was erected in 1910. In 1911, German-American citizens dedicated the Gothe und Schiller monument. The Rock of the Marne Monument was erected 1920. A few years later in 1924, the Spanish War Memorial was dedicated. Also at Firefighters Memorial Park, the Phillip Eckel Memorial has stood since at least 1955. More recently in 2001 at Clinton Square, the Jerry Rescue Monument was dedicated. These monuments and memorials contain examples of statuary and plaques constructed in part of bronze, many even older than the Columbus Statue. It would be preposterous to say that all must come down, or in the case of the Jerry Rescue soon to come down, as they have exceeded their useful life. In fact, there are two types of grave-markers the Veterans Administration provides eligible veterans: stone of either granite or marble, or bronze. Bronze in all these applications is chosen for its durability and lasting nature. As explained above, the useful life of the Monument is certainly more than twenty-three years.
https://www.cem.va.gov/cem/hmm/types.asp
This matter is simply a question of law for this Court to determine. Removing the Monument, as is the Respondents stated decision (see Ryan Letter, NYSCEF Doc. No. 42, p. 3 of 4), would run contrary to the Project Agreement. It was disingenuous to send a letter to the State of New York announcing the City of Syracuse "made the decision to remove the Columbus Statue and modify Columbus Circle" when in fact there was no authority for that letter. The City of Syracuse changed its posture before this Court in presenting that the process is ongoing, and a final determination has yet to be made. Obviously, a decision was made by the letter sent to the State of New York resulting in the State agreeing to a purported termination of the Protective Covenant. Further disheartening is continually misquoting to the Court and State of New York the plain language of the Preservation Covenant by intentionally leaving the most salient part of the provision, "23 years of the useful life of the improvement, made with funds provided pursuant to this agreement, whichever is longer " (see Preservation Covenant, NYSCEF Doc. No. 20, ¶5, emphasis added ). As third-party beneficiaries, Petitioners have the right to enforce the preservation restrictions. The Court finds that the Preservation Covenant in full effect, and therefore, the purported termination agreement is null and void.
Mayor Walsh wants the statue removed, but it is clear to this Court that Mayor Walsh did not act arbitrarily and intentionally when he exceeded his authority in this matter to the extent of holding him personally liable (see generally Landmark W.! v. Tierney , 9 Misc. 3d 1102[A], 1102A, 2005 NY Slip Op. 51374[U], *7, 2005 WL 2108005 [Sup. Ct., N.Y. County 2005] ). From this record it appears he relied upon the advice of counsel. The Amended Petition as it relates to Ben Walsh being held individually liable is denied.
NOW, THEREFORE , upon reading and filing the papers with respect to the instant Amended Petition and associated motion, and due deliberation having been had thereon, it is hereby
ORDERED , that Respondents’ motion to dismiss is GRANTED insofar as dismissing the Amended Petition's claims for a writ of prohibition pursuant to CPLR § 7803(2) ; and it is further
ORDERED , that Respondents’ motion to dismiss is GRANTED insofar as dismissing the Amended Petition's claims for relief pursuant to Chapter 51 of the City's Code of Ordinances governing Public Art is GRANTED; and it is further
ORDERED , that the Respondents’ motion to dismiss is GRANTED insofar as dismissing the Amended Petition's claim for relief seeking an order per § 6311 enjoining the Respondents from spending public money with regard to the defense of this proceeding; and ORDERED , that the Respondents’ motion is DENIED in all other parts which are not specifically granted above; and it is further
ORDERED , that the Verified Petition is GRANTED insofar as it seeks relief pursuant to CPLR § 7803(1) and (3) mandating that the City of Syracuse maintain the Monument in its present form, as commanded by law, including the trust provisions of Section 8-111 of the City Charter to avoid waste and the City's assumed duty to do so; and it is further
ORDERED , that the Verified Petition is GRANTED insofar as it seeks a declaratory judgment pursuant to CPLR § 3001 that the Respondents have no legal right to alter the piece of art known as the Christopher Columbus Monument or remove same or any part of it from its present place on St. Mary's Circle, commonly known as Columbus Circle, in the City of Syracuse; and it is further
ORDERED , that the Verified Petition is GRANTED insofar as it seeks a declaratory judgment pursuant to CPLR § 3001 that Respondent Mayor's stated goal to alter the Monument by removing the statuary violates the City's duty to protect the Monument as well as Section 8-111 of the City Charter; and it is further
ORDERED , that the Verified Petition is GRANTED insofar as it seeks a declaratory judgment pursuant to CPLR § 3001 that the Monument has not exceeded its useful life; and it is further
ORDERED , that the Verified Petition is GRANTED insofar as it seeks a declaratory judgment pursuant to CPLR § 3001 that the purported Termination of Protective Covenant filed in the Onondaga County Clerk's Office on March 22, 2021 is null and void and the Onondaga County Clerk is directed to expunge the document from her records; and it is further
ORDERED , that the Verified Petition is GRANTED insofar as it seeks a declaratory judgment pursuant to CPLR § 3001 that the Petitioners are third-party beneficiaries of the City's obligation to preserve and maintain the Monument for its useful life; and it is further
ORDERED , that the Verified Petition is DENIED insofar as it seeks to hold Ben Walsh liable in his individual capacity; and it is further
ORDERED , that the Amended Petition is DENIED in all other parts which are not specifically granted above.