Supplemental Reply Affirmation

    LAW DEPARTMENT 

100 CHURCH STREET 
NEW YORK, N.Y. 10007 

QE PAUL A. CROTTY 
0 eng Corporation Counsel 

New ork DANIEL TURBOW (212) 788-0412 
Chief, Condemnation & Certiorari Division FAX (212) 788-0367 

  

Bv Hand 

November 29, 1996 

Hon. Herbert A. Posner 

Justice 
Supreme Court of the State of New York 

Queens County 

88-11 Sutphin Boulevard 
Queens, New York 11435 

Re: Council v. Giuliani 

Campaign v. Giuliani 
  

Dear Justice Posner: 

Enclosed please find defendants’ Supplemental Reply Affirmation in the above- 

captioned matters. 

Respectfully, 

Daniel Turbow 

Encls. 

DT:rp 
CC; Ira Finkelstein 

Kenneth Kimerling 

 



  

SUPREME COURT OF THE STATE OF NEW YORK 

COUNTY OF QUEENS 

  

— a ——————————————————————— —— — ——————— X 

THE COUNCIL OF THE CITY OF NEW YORK, 

et al., 

Plaintiffs, 1AS Pari 5 

: Posner, J. 

- against - 

RUDOLPH W. GIULIANI, THE MAYOR OF THE Index No. 004897-96 

CITY OF NEW YORK, et al., 

Defendants. 

——————————————— 
X 

CAMPAIGN TO SAVE OUR PUBLIC HOSPITALS 

- QUEENS COALITION, an unincorporated 

association, et al., Index No. 10763/96 

Plaintiffs, 

SUPPLEMENTAL 

- against - REPLY 
AFFIRMATION 
  

RUDOLPH W. GIULIANI, THE MAYOR OF THE 

CITY OF NEW YORK, et al., 
Defendants. 

Daniel Turbow, an attorney admitted to the practice of law before the Courts of 

the State of New York, affirms the following to be true under penalties of perjury pursuant to 

Section 2106 of the Civil Practice Law and Rules: 

1 I am an Assistant Corporation Counsel in the Office of Paul A. Crotty, 

Corporation Counsel of the City of New York, attorney for defendants in these actions. 1 submit 

this affirmation in reply to plaintiffs’ supplemental submissions concerning the impact of 

§ 1152(e) of the New York City Charter upon the issues before the Court. 

2. Plaintiffs are correct when they posit that by operation of Charter 

§ 1152(e) the Council now exercises, through ULURP, the land use review authority previously 

 



  

exercised by the Board through ULURP with respect to dispositions of real property made by 

the City. However, contrary to their contention, the consent authority contemplated by HHC Act 
  

§ 7385(6) with respect to dispositions made by HHC does not implicate ULURP. Accordingly, 
  

the Board never exercised ULURP authority in connection with HHC Act § 7385(6) and it is 

not subject to Council exercise now. 

3; The foregoing can be best understood by remembering that the Board 

exercised a myriad of powers in a variety of spheres. However, ULURP was not implicated 

every time it exercised any of those powers -- even those involving land. Rather, ULURP was 

only implicated in a certain limited category of cases prescribed by the statue itself. See, e.g., 

Mauldin v. Transit Authority, 64 A.D.2d 114 (2d Dept. 1978)("The application of [ULURP] 
  

is necessarily limited to the 11 paragraphs of subdivision a" of Charter § 197-c.). Because the 

Board did not exercise ULURP authority under HHC Act § 7385(6) no such authority devolved 

upon the Council. 

4. Put another way, as is applicable here, under the Charter as it existed 

before the 1989 amendments, the Board exercised two distinct powers with respect to the 

disposition of real property of the City. The first, dealing with the business terms of the 

transaction, was contained in Charter § 384(a), which provided: 

No real property of the city may be sold, leased, 

exchanged or otherwise disposed of except with the 

approval of the board of estimate and as may be 

provided by law unless such power is expressly 

vested in law in another agency. 

The second, entirely distinct power, was not, as plaintiffs would have the Court believe, a 

generalized, "free-floating" land use review authority. Rather, it was the authority with respect 

to land use review that it exercised in connection with those circumscribed categories of 

2. 

 



  

* * 

transactions to which the ULURP process was applicable. There were times when a single 

transaction involved the exercise of both those powers. However, the exercise of the power 

under § 384(a) did not automatically mean that ULURP was applicable. 

3 With the demise of the Board of Estimate the powers previously exercised 

under § 384(a) devolved upon the Mayor, and those exercised pursuant to ULURP devolved 

upon the Council. However, where a transaction did not implicate ULURP, there was simply 

no ULURP (or land use review) authority became subject to devolution. That is the case here. 

6. As explained in our prior papers, the authority granted the Board of 

Estimate under HHC Act § 7385(6) reflected nothing more than a recognition of the Board's 

generalized authority over dispositions contained in Charter § 384(a). Section 7385(6) did not 
  

contemplate the exercise of the Board's authority under ULURP -- indeed, ULURP did not even 
  

exist when § 7385(6) was adopted.! Accordingly, when the Board was dissolved, the only 
  

power reflected in § 7385(6) which was subject to devolution was that which found its basis in 

§ 384(a). And, as plaintiffs concede, by operation of Charter § 1152(e), the Mayor now 

exercises the authority previously granted the Board under § 384(a). 

7: Indeed, as we previously demonstrated to the Court,” when the Board 

exercised its authority pursuant to HHC Act § 7385(6) to consent to the Enzo Biochem sublease, 

ULURP was not implicated. Plaintiffs try to obscure that fact by noting that testimony before 

the Board at the hearing which preceded its vote on the § 7385(6) application contained some 

  

I Moreover, as we discussed in our prior submissions, application of locally-imposed ULURP 

requirements to the process prescribed by the HHC Act -- a State statute -- would be both 

inconsistent with the State legislature's intent and violative of the Municipal Home Rule Law. 

And, as we have previously demonstrated, by its terms, ULURP does not apply to a disposition 

by HHC of its interest in property. 

2 See September 30, 1996 Reply Affirmation of David Karnovsky ("Karnovsky Aff."). 

3 

 



  

reference to matters which might be characterized as "land use" issues. Whatever members of 

the public may have considered as the relevant issue, the record in fact reflects the Board 

members’ understanding that their approval was being sought in connection with the business 

terms of the transaction. Neither the calendar notice nor the resolution subsequently adopted by 

the Board pursuant to HHC Act § 7385(6) make any reference to ULURP.’ 

8. ULURP was considered only in connection with the completely separate 

action taken by the Board in connection with the Enzo Biochem transaction, viz., an application 

to amend the zoning map. And, the reason it applied there is because a zoning change 

application falls within those categories of transactions which are subject to ULURP. However, 

no zoning changes -- or other actions falling within the ambit of ULURP -- are necessary in 

connection with the instant transaction. 

Dated: New York, New York 

November 29, 1996 

po ~ ne 

Daniel Turbow 
  

  

3S e Karnovsky Aff., Exh. C; September 12, 1996 Affirmation of Daniel Turbow, Exh. A 

e K 

e 

4 Se arnovsky Aff., Exhs. A and B. 

 



Index No. 004897-96 and Index No. 10763-96 respectively 
  

  

  
  

SUPREME COURT OF THE STATE OF NEW YORK . 

COUNTY OF QUEENS : IAS PART 5 f 
é | 

THE COUNCIL OF THE CITY OF NEW YORK, et al., ") ( 

Plaintiffs, 

- against - 

RUDOLPH W. GIULIANI, THE MAYOR OF THE CITY 3 

OF NEW YORK, et al., 

Defendants. 

CAMPAIGN TO SAVE OUR PUBLIC HOSPITALS - 

QUEENS COALITION, an unincorporated association, et 

al. 

Plaintiffs, 

- against - 

RUDOLPH W. GIULIANI, THE MAYOR OF THE CITY 

OF NEW YORK, et al., 

Defendants. 

  
  

SUPPLEMENTAL REPLY AFFIRMATION 

  
  

PAUL A. CROTTY 

Corporation Counsel of the City of New York 

Attorney for Defendants 

100 Church Street 

New York, N.Y. 10007 

Of Counsel: Daniel Turbow » 
Tel: (212) 788-0412 

NYCLIS No. 
  
  

Due and timely service is hereby admirted. 

NowYork, NY ioc. ol ue a 199...