SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK xCITIZENS DEFENDING LIBRARIES, :EDMUND MORRIS, ANNALYN SWAN, :STANLEY N. KATZ, THOMAS BENDER,:DAVID NASAW, JOAN W. SCOTT,CYNTHIA M. PYLE, CHRISTABEL •GOUGH, and BLANCHE WEISEN COOK,:

Plaintiffs,

- against -

DR. ANTHONY W. MARX, NEIL L. :RUDENSTINE, BOARD OF TRUSTEES :OF THE NEW YORK PUBLIC LIBRARY, :NEW YORK PUBLIC LIBRARY, ASTOR, :LENOX AND TILDEN FOUNDATIONS, :MICHAEL R. BLOOMBERG,VERONICA WHITE, NEW YORK CITY :DEPARTMENT OF PARKS ANDRECREATION, CITY OF NEW YORK,ROBERT SILMAN ASSOCIATES,P.C., and JOSEPH TORTORELLA,

Defendants,

-and-

STATE OF NEW YORK, NEW YORKSTATE OFFICE OF PARKS,RECREATION & HISTORICPRESERVATION (NEW YORK

•STATE DIVISION FOR HISTORICPRESERVATION AND RECREATION), :

Nominal Defendants. :

Index No.:652427/2013

PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF ORDER TOSHOW CAUSE FOR TEMPORARY RESTRAINING ORDER ANDPRELIMINARY INJUNCTIVE RELIEF

PRELIMINARY STATEMENT

This is an action for injunctive relief in which a coalition of aggrieved historic

preservationists, Pulitzer Prize-winning authors, National Book Award winners, scholars, professors,

lecturers, writers, researchers, and concerned citizens (collectively, the "Coalition") seek to protect

from demolition an irreplaceable portion of the main branch of the New York Public Library, located

in Manhattan between 40th and 42nd streets along Fifth Avenue and adjacent to Bryant Park (the

"Central Library"). In particular, the Coalition seeks to prevent the destruction of seven stories of

iron and structural steel book stacks at the Central Library (the "Stacks"), and the continued offsite

displacement of millions of books to remote storage facilities in connection therewith, all as part of

a library branch sell-off, consolidation, and space-shrinkage project known as the Central Library

Plan ("CLP"). 1

In addition to the ongoing removal of books, which quietly has been underway for some time,

it appears that the demolition phase of the CLP is about to be implemented by the New York Public

Library, Astor, Lenox and Tilden Foundations ("NYPL"), in violation of a certain binding agreement

to which the NYPL is a party, in contravention of the various trusts and indentures upon which the

NYPL was founded, in derogation of New York law, and in violation of the Coalition's rights and

those of the general public, for whose benefit the NYPL explicitly was established.

1 This Memorandum uses the same abbreviations and other capitalized terms defined in theaccompanying Affirmation of Michael S. Hiller, dated July 10, 2013 ("Hiller Aff."). Sometimes, in orderto maintain the flow of the narrative and for the convenience of the reader, the full terms are employed anddefined a second time herein.

Not only are the Stacks among the most important early examples of a highly innovative

book storage system, but they simultaneously serve as part of the structural skeleton of the Central

Library. The seven-story network of iron and steel Stacks structurally supports the floor of the

historic Rose Reading Room, which is situated directly above them. Removal of the Stacks, and the

continued offsite displacement of the materials they hold, threatens to endanger the Central Library's

status as one of the world's leading research facilities, and to alter irrevocably the architectural

integrity of the Central Library, a New York City Landmark and National Historic Landmark.

The filing of this action is accompanied by an Order to Show Cause for temporary and

preliminary injunctive relief because, inter alia, the NYPL appears to have obtained from the New

York City Department of Buildings ("DOB") no fewer than seven building permits since June 4,

2013, including two permits allowing defendant Robert Silman Associates, P.C. ("Silman PC"), the

lead structural engineering firm retained by the NYPL to remove the Stacks, to make structural

modifications to the Central Library.

If the Stacks were to be removed in whole or in part, and if the books they contained were

to be permanently displaced from the Central Library, the public, including the Coalition, for whose

benefit the NYPL was created, will be irreparably harmed. The Coalition has no alternative but to

commence this action with a motion for immediate injunctive relief.

SUMMARY OF ARGUMENT

The clear and unambiguous terms of a contract dated June 2, 1978, between the NYPL, the

City, and the New York State Office of Parks, Recreation & Historic Preservation ("PARKS") (the

3

"1978 Agreement") (Exh. 3), 2 expressly prohibit the NYPL and the City from making any structural

modifications to the Central Library without the prior approval of PARKS. No such approval has

been obtained. In addition, the 1978 Agreement explicitly provides, inter alia, that the NYPL and

the City are "to hold, maintain and administer [the Central Library] for the benefit of the public at

large" (Exh. 3 ¶8). As an explicitly intended third-party beneficiary, the public-at-large, including

the Coalition, has the right to enforce the terms of the 1978 Agreement.

In addition, with respect to the books, the clear and unambiguous mandate of the NYPL's

founding Astor, Lenox, and Tilden Trusts (the "Three Library Companies"), expressly requires, inter

alia, that the Central Library's books shall always remain in the Central Library to be used by

readers there. This trust mandate (the "NYPL Charter") has been carried forward and incorporated

by reference into: (i) the current NYPL Charter; (ii) that certain Agreement of Consolidation among

the Three Library Companies (Exh. 1); (iii) that certain Address by the then-NYPL's Board of

Trustees to then-Mayor Strong (Exh. 5); (iv) the NYPL's Lease with the City for the Central Library

building (Exh. 2); and (v) the 1978 Agreement (Exh. 3). As with the 1978 Agreement, the public-at-

large, including the Coalition, is listed as an intended beneficiary of the NYPL Charter, and is

entitled to enforce its terms.

At a minimum, the status quo with regard to demolition of the Stacks and removal of the

books must be maintained until this Court has an opportunity to rule on the merits. If the defendants

were not to be enjoined from demolishing the Stacks, in direct contravention of the 1978 Agreement,

and from continuing to remove books in direct contravention of the NYPL Charter, the members of

2References to exhibits are to those annexed to the Hiller Aff.

4

the Coalition would be irreparably harmed. Indeed, denial of injunctive relief would render

ineffectual any final judgment in favor of the Coalition.

By virtue of the clear terms of the 1978 Agreement and the NYPL Charter, the plaintiffs

should succeed in this action. At a minimum, the Complaint raises serious questions going to the

merits, to make them a fair ground for litigation, thus warranting the issuance of injunctive relief

even if questions of fact were to exist. Clearly, the balance of the equities tips in favor of the

members of the Coalition, who merely wish to preserve the status quo until this Court can rule, and

who lack an adequate remedy at law.'

STATEMENT OF FACTS

The Three Library Companies

In 1895, the members of the boards of trustees of three library companies, "The Trustees of

the Astor Library," "The Trustees of the Lenox Library," and "The Tilden Trust" (collectively, the

"Three Library Companies"), began negotiations concerning their consolidation "in such form that

the benefits of the three institutions might be more widely disseminated among the people" (New

York Public Library Bulletin, Vol. I, No. 1, p. 10) (the "NYPL Bulletin") (Exh. 4). 4

By Agreement of Consolidation, dated May 23, 1895 ("Agreement of Consolidation"), the

30n June 27, 2013, Dr. Anthony Marx, President and Chief Executive Officer of theNYPL, testified before the State Assembly's Standing Committee on Libraries, inter alia, thatthe NYPL has no established budget for the CLP, and that it has not even prepared, much lessobtained, approval for removal of the Stacks. If Dr. Marx's testimony is accurate, then theNYPL would not be prejudiced by the issuance of interim injunctive relief. Dr. Marx'stestimony is a matter of public record.

4 Since the NYPL Bulletin is 368 pages in length, only the pertinent pages therefrom areannexed to the Hiller Aff. as Exh. 4.

5

Three Library Companies were consolidated into a single library corporation, thereby forming the

NYPL (the "Consolidation"). Prior to the Consolidation, each of the Three Library Companies was

subject to resolutions intended to ensure the promotion of the several objects and purposes set forth

in each of their respective acts of incorporation (Exh. 1, Paragraph Second). Once consolidated,

each of the several objects and purposes set forth in each of the Three Library Companies' acts of

incorporation was carried over into the NYPL, to be observed and maintained by the NYPL's Board

of Trustees for the public benefit (id.). Thus, the terms of the Agreement of Consolidation were

straightforward:

The new corporation was to establish and maintain a free public library and readingroom in the City of New York, with such branches as might be deemed advisable,and was to "continue and promote the several objects and purposes set forth in theseveral acts of inco oration of The Tru tee of the Astor Libr. The Tru tees ofthe Lenox Library and The Tilden Trust." It was distinctly provided that the newcorporation [i.e.. the NYPL] should make appropriate provision for faithfullykeeping and. observing all the limitations, conditions or restrictions under which any of the funds or property of the several constituent corporations were to be used or enjoyed (Exh. 4, I.1, 11) (emphasis added).

The Objects and Purposesof the Astor Library

The entity, "The Trustees of the Astor Library," was incorporated by State Act on January

18, 1849 (Exh. 1, First Recital), with the endowment of the late John Jacob Astor, who desired, as

expressed in his will, "to render a public benefit to the City of New York" by the "establishment of

a Public Library to be accessible at all reasonable hours and times, for general use, free of expense

to persons resorting thereto" (Exh. 4, I.1, 3).

The Trustees of the Astor Library, at a very early period in the corporation's history,

"expressed their conviction 'that not only the convenience of the public. but the preservation and

6

safety of the library absolutely demanded. that the books should not be lent out or taken from the

library building, under any circumstances. In a library of reference, intended for students, properly

economical of time and often coming from a distance for consultation the necessit for eve book

required being always ready for examination without delay. must be apparent" (NYPL Bulletin, I.1,

4; emphasis added) (the "Conviction").

In a report made to the Legislature of the State of New York in 1858, the Astor Library

Trustees reiterated their Conviction, and further stated that they had "deemed it proper and necessary

to prevent any further agitation of the subject by entering on their records a stipulation expressing

those views in such a form as to furnish a pledge, not only to the public, but to every friend of

learning, who may hereafter feel disposed to aid the library by donations or endowments" (NYPL

Bulletin, 1.1, 5) (emphasis added).

A reference to the minutes of the Astor Library Trustees shows that this pledge, inter alia,

to the public, was adopted at their meeting on July 29, 1857, in the following terms:

Mr. [William B.] Astor stated that the donations by him made, and some intended tobe hereafter made, were on the understanding that it was the settled and

as inisterin the Libra that its content ► ld remainin the Library rooms, for use by readers there, and should not be lent out orallowed to be taken , from the rooms; and he requested that the views of the Boardbe freely and fully expressed. It was thereupon resolved, that the settled and unchangeable plan of administering_thg Library is the one above expressed byMr. Astor; and the donations in money, land and otherwise, received from Mr.Astor, and to be hereafter received from him, and from other friends of learning, arereceived and will be administered according to such plan, and not otherwise (NYPLBulletin, I.1, 5) (emphasis added).

The NYPL Bulletin, which was prepared under the direction of the NYPL's then-Board of

Trustees, refers to the foregoing "settled and unchangeable plan of administering the Library" as the

sole purpose to which the larger portion of the Astor endowments can be devoted:

7

Upon these terms, therefore, the larger part of the endowments of the Astor Librarywere expressly received .... To that purpose alone could their funds be rightfullydevoted" (NYPL Bulletin I.1, 5) (emphasis added).

The Objects and Purposesof the Lenox Library

The entity, "The Trustees of the Lenox Library," was incorporated by an Act of the State

Legislature on January 20, 1870 (Exh. 1, Second Recital), with an original endowment from James

Lenox consisting of land, money, and "the great collection of manuscripts, Bibles, early printed

books, engravings, maps, statuary, paintings, drawings and other works of art which he had gathered

during a long life" (NYPL Bulletin, I, 5).

The Lenox Trustees considered that the "permanent security and preservation" of Mr.

Lenox's "special collections" was their "first duty" (NYPL Bulletin , I.1, 7):

They regarded the Library as having been established "for the public exhibition andscholarly use of some of the most rare and precious of such monuments andmemorials of the typographic art and the historic past" as had escaped the wreck oftime; and such volumes were "not to be subjected to the constant service ofcirculation or use in which they may be worn out or destroyed" (Id.; emphasisadded).

Thus, the Lenox Trustees were particularly concerned that transportation would damage their

collection and therefore, as with the limitation imposed upon the Astor Collection, the books were

restricted to the Central Library and not to be removed therefrom (Id.).

The Objects and Purposesof the Tilden Trust

The Tilden Trust was established at the bequest of Samuel J. Tilden "for the establishment

and maintenance of a free Library and Reading Room in the City of New York" (Exh. 1, Third

Recital). The State Legislature passed the incorporating Act with regard to The Tilden Trust on

8

March 26, 1887, but the legalities of the endowment were disputed until in or about 1892, when an

agreement was entered into between The Tilden Trust and a niece of Mr. Tilden, after extensive

litigation regarding the validity of residuary clauses (NYPL Bulletin I.1, 9). By December 31, 1894,

"The Tilden Trust was in possession of Mr. Tilden's fine private library, containing about 20,000

volumes" (Id. at 10).

The Objects and Purposes ofthe Consolidated Central Library

As shown above, upon Consolidation of the Three Library Companies, each of the several

objects, purposes, limitations, conditions, and restrictions (collectively, the "Objects and Purposes")

to which each of the Three Library Companies was subject, was carried over into the NYPL, to be

observed and maintained by the NYPL's Board of Trustees for the public benefit (Exh. 1, Paragraph

Second; Exh. 4, I.1, 11). These included the obligation to ensure that no books or other materials

be either lent out or otherwise removed from the Central Library.

Soon after Consolidation, the then-Board of Trustees of the NYPL sought to locate a parcel

of property large enough to provide adequate space for the consolidated collection and to

accommodate future expansion, but were concerned that the NYPL would become bankrupt if it had

to fund the land acquisition and building construction itself. Accordingly, on March 25, 1896, the

then-Board of Trustees presented an address to the Hon. William L. Strong (then-Mayor of New

York City), whereby it applied to the City for a grant of land and building capital (the "Address")

(Exh. 5). In pertinent part, the then-Board of Trustees represented to Mayor Strong that:

The charters of the individual corporations and the trusts assumed towards thefounders of the libraries and other benefactors, render it necessary in any event that

9

the Astor and Lenox collections shall always remain in the library for use b, readersthere (Exh. 5) (emphasis added). 5

In May 1896, the State Legislature passed a law authorizing the predecessor of the defendant,

NYC DOP, to enter into a contract with the NYPL for the use and occupation of the land now

occupied by the Central Library, "for establishing and maintaining a free public library and reading

room and carrying out the objects and purposes of said corporation * * and said contract may

provide that such use and occupation may continue so long as the said New York Public Library,

Astor, Lenox and Tilden Foundations, or its successors, shall maintain such free library and reading

room upon said land" (Exh. 4, I.1, 20) (emphasis added). This Act was signed into law by the

Governor of the State of New York on May 19, 1896 (id. at 1.1, 20).

The Objects and Purposes of the newly-consolidated NYPL were, and continue to be, among

other things, to store in the Central Library, and not to remove therefrom, books and other research

materials so that they will be available for immediate use by scholars, students and other members

of the general public (Exh. 1; Exh. 5 ("the Astor and Lenox collections shall always remain in the

library for use by readers there"); Exh. 4 at Ll, 5 ("its contents should remain in the Library rooms,

for use by readers there, and should not be lent out or allowed to be taken from the rooms");

emphasis added).

The Board next applied to the City's Board of Aldermen for a resolution allowing the land

on which the NYPL building would be situated ("Public Land") to be controlled by the then-

'The Tilden Trust was financially well-endowed but lacked an extensive collection. Atthe same time, the Astor and Lenox Trusts had extensive collections but required additionalfunds to ensure full access by the public. This is how the NYPL Consolidation came about (Exh.4, 1.1, 10).

10

Department of Parks, which such resolution was adopted by the City on December 22, 1896 (Exh.

4 at I.1, 21). The City Charter was thereafter amended to allow the City to enter into a contract with

the NYPL to use the Public Land "for establishing and maintaining thereon a free public library and

reading room, and for carrying out the objects and purposes of said corporation in accordance with

the provisions of the agreement of consolidation between the trustees" (Exh. 6 hereto) (emphasis

added).

On May 19, 1897, the Governor signed an Act providing for the construction of the Central

Library to be occupied by the NYPL, inter cilia, 'for carrying out the objects and purposes of said

corporation, in accordance with the agreement of consolidation whereby said corporation was

constituted, and the several acts incorporating the trustees of the Astor library, the trustees of the

Lenox library and the Tilden trust" (Exh. 7 hereto).

On December 8, 1897, the NYPL entered into the Lease for the Central Library with the City,

for "so long as the [NYPL] shall use and occupy such building for the purpose of maintaining therein

a public library and reading room and carrying on the objects and purposes of the said corporation,

as provided by its said agreement of consolidation and the several acts incorporating the Trustees

of the Astor Library. the Trustees of the Lenox Library, and The Tilden Trust, respectively" (Exh.

2). This Lease was entered into after then-Board of Trustees had represented to the City, in its

Address to Mayor Strong, its Conviction that the library's books "shall always remain in the library

for use by readers there" (Exh. 5; emphasis added).

The Winning ArchitecturalDesign Containing the Stacks

In or about March 1899, the NYPL hosted an architectural competition for the design of the

11

Central Library. The winning design was prepared by the architectural firm, Carrere & Hastings.

Construction of the Central Library in accordance with Carrere & Hastings's drawings was finished

in or about 1911, having taken 11 years to complete at a cost of approximately S9 million. Carrere

& Hastings's winning architectural design included the Stacks as an architecturally and structurally

integral piece of the Central Library (Affidavit of Charles Davock Warren at ¶7; Affidavit of Mildred

Schmertz at ¶7; Affidavit of Christabel Gough at ¶7).

The Stacks are both the literal and metaphorical heart of the Central Library. They are

positioned directly below the Rose Reading Room to ensure, among other things, that books could

be promptly retrieved and delivered to scholars and other visitors in need of resource materials, and

then promptly returned to the Stacks. Demolition of the Stacks, if permitted, would, among other

things, compromise the architectural and structural integrity of the now-landmarked Central Library,

and undermine its critical design, the purpose of which is to facilitate expedited, comprehensive, and

efficient research (Warren Aff. ¶8; Schmertz Aff. ¶9; Gough Aff. ¶7; Affidavit of Edmund Morris

at ¶6; Affidavit of Annalyn Swan at ¶11).

The 1978 Agreement with PARKSand the Public at Large

As noted supra, on June 2, 1978, the NYPL entered into the 1978 Agreement with the City

and PARKS, pursuant to the terms of which the NYPL and the City promised: (i) "to protect and

preserve the historical integrity of features, materials, appearance, workmanship and environment"

of the Central Library (Exh. 3 ¶4); (ii) "to make no changes in the structure or improvements of said

premises or additions thereto without the prior approval of PARKS" (Exh. 3 ¶7) (emphasis added);

and (iii) "to hold, maintain and administer [the Central Library] for the benefit of the public at large"

12

(Id. ¶8) (emphasis added). Accordingly, members of the general public are intended third-party

beneficiaries under the 1978 Agreement.

PARKS has not approved any construction relating to removal of the Stacks. Indeed, the

only New York State action with respect to the CLP occurred on June 27, 2013, when the State

Assembly Standing Committee on Libraries (the "State Committee") convened its first hearing to

consider the CLP and, in particular, removal of the Stacks. The State Committee did not approve

the CLP at the hearing (Hiller Aff. ¶ 8).

The Central Library Plan

Under the CLP, the NYPL intends to:

A. Gut the Central Library of the seven stories of iron and structural steelStacks;

B. Displace the millions of books and other resource materials previouslyshelved in the Stacks to remote offsite storage facilities, in violation of, interalia, the NYPL's Charter and the objects and purposes of the NYPL withwhich the defendants Board of Trustees, Dr. Marx and Mr. Rudenstine arerequired to comply;

C. Sell off for private real estate development two branches of the CentralLibrary -- the Mid-Manhattan Library ("Mid-Manhattan" Branch) and theScience, Business and Industry Library ("SIBL" Branch);

D. Shoe-horn the SIBL and Mid-Manhattan collections, or likely a verysignificantly reduced version of those collections, into the area of theCentral Library formerly occupied by the Stacks and books; and

E. Convert the Central Library from one of the world's foremost researchinstitutions, featuring on-site books, manuscripts and other rare and originalresource materials from all over the world, into an oversized circulatinglibrary.

Under the CLP, the work to remove the Stacks, upon which the Central Library relies for

structural support, is slated to be performed while the Central Library, including the Rose Reading

13

Room, remains open, creating a risk of harm to the public (Schmertz Aff. ¶9; Warren Aff. (1 79).

Indeed, Mr. Tortorella, the President of the defendant structural engineering firm Silman PC, which

has been retained by the NYPL to implement the CLP, including removal of the Stacks, has

compared removal of the Stacks to "cutting the legs off a table while dinner is being served"(The

New York Times, January 29, 2013) (Exh. 8). With regard to this statement by Mr. Tortorella,

Mildred Schmertz, the eminently qualified architect and former Commissioner of the New York City

Landmarks Preservation Commission, had this to say:

While a colorful metaphor, Mr. Tortorella's descriptive reference constitutes asignificant understatement; removal of the Stacks while the general public continuesto use the Rose Reading Room, for which the Stacks provide the principal structuralsupport, is akin to removing and replacing the foundation of Yankee Stadium whilea World Series game is played in front of a full audience of spectators. I am notsuggesting that it would be impossible, but the risks are considerable. (Schmertz Aff.at ¶9).

In the words of the late Ada Louise Huxtable, the Dean of New York Architecture critics, the

CLP "is a plan devised out of a profound ignorance of or willful disregard for, not only the library's

original concept and design, but also the folly of altering its meaning and mission and compromising

its historical and architectural integrity. You don't 'update' a masterpiece" (Ada Louise Huxtable,

"Undertaking its Destruction," Wall Street Journal, December 3, 2012) (Exh. 9).

Similarly, The New York Times Architecture critic Michael Kimmelman has dismissed the

CLP as having "all the elegance and distinction of a suburban mall" (The New York Times, January

29, 2013) (Exh. 8), while Bloomberg News Architecture critic James Russell described it as "thin

architectural gruel" (James Russell, "N.Y. Public Library, Norman Foster Evict a Million Books,"

Bloomberg News, December 19, 2012) (Exh. 10).

The Breach of Contract, the Breach of Trust,

14

and the Threat of Imminent and Irreparable Harm

The 1978 Agreement is an enforceable contract under which the NYPL and the City each

explicitly promised "to protect and preserve the historical integrity of the features, materials,

appearance, workmanship and environment" of the Central Library (Exh. 3 ¶4), and "to make no

changes in the structure or improvements of said premises or additions thereto without the prior

approval of PARKS" (Exh. 3 ¶7), which has given no such approval. The public-at-large, as well

as the Coalition of plaintiffs herein, are intended beneficiaries of the 1978 Agreement.

Similarly, the Coalition of plaintiffs herein, as well as the public-at-large, are intended

beneficiaries of the NYPL Charter requiring that the Central Library's books "shall always remain

in the library for use by readers there" (Exh. 5; emphasis added), which such Charter has been

carried forward and incorporated by reference into the Agreement of Consolidation, the Address, the

Lease with the City and the 1978 Agreement. Clearly, the ongoing displacement of the Central

Library's books to remote offsite storage facilities, and the planned demolition of the Stacks,

constitute breaches of trust and contract for which the Coalition may seek redress.

Although, as noted in footnote 3, supra, Dr. Marx stated to the State Committee on June 27,

2013, that demolition of the Stacks is not imminent, there is no Order from any Court precluding the

NYPL from demolishing the Stacks if it so chooses. In this connection, within approximately the

past two months, the NYPL appears to have obtained no fewer than seven building permits from the

DOB (i.e., from the City, not PARKS, a State governmental body), including those dated June 4,

2013, and June 20, 2013, allowing the NYPL and Silman PC to make "STRUCTURAL

MODIFICATIONS INCLUDING STEEL LINTELED OPENINGS AS SHOWN ON PLANS FILED

HEREWITH FOR EARLY WORK PHASE 1B" (Job No. 1213334798), and "STRUCTURAL

15

MODIFICATIONS, INTERVENTION AND SHORING AS SHOWN ON PLANS FILED

HEREWITH FOR EARLY WORK PHASE 1A" (Job No. 121234789) (Exh. 14 hereto).

Unless an Order is issued enjoining defendants from continuing to remove the books and

from demolishing the Stacks, in whole or in part, the public-at-large and the Coalition of plaintiffs

herein could be irreparably harmed.

ARGUMENT

TEMPORARY AND PRELIMINARY INJUNCTIVE RELIEF ISNECESSARY TO PRESERVE THE STATUS QUO AND PREVENTIRREPARABLE HARM PENDING A DETERMINATION ON THE MERITS

The purpose of a preliminary injunction is to preserve the status quo until a decision can be

reached on the merits. 360 West 11th LLC v. ACG Credit Company II, LLC, 46 A.D.3d 367, 367

(1st Dep't. 2007); Moody v. Filipowski, 146 A.D.2d 675, 678 (2d Dep't. 2005).

In order to obtain a preliminary injunction, plaintiffs must "show a probability of success,

danger of irreparable injury in the absence of an injunction, and a balance of the equities in their

favor" (Aetna Insurance Company v. Capasso, 75 N.Y.2d 860, 862 (1900)). Sufficiently serious

questions going to the merits, so as to make them a fair ground for litigation, satisfies the element

of likelihood of success on the merits. Pashaian v. Eccelston Properties, Ltd, 88 F.3d 77, 87 (2d

Cir. 1996) (applying New York law). Moreover, where, as here, denial of injunctive relief would

render the final judgment ineffectual (since the Stacks, once removed, cannot be returned or

replaced), "the degree of proof required to establish the element of likelihood of success on the

merits should be accordingly reduced." Gramercy Co. v. 60 Gramercy Park North Residential

Corp., 223 A.D.2d 497, 498 (1st Dep't. 1996) (quoting Republic of Lebanon v. Sotheby's, 167

A.D.2d 142, 145 (1st Dep't. 1990)). As demonstrated below, plaintiffs more than satisfy this

standard.

16

A. PLAINTIFFS AND THE PUBLIC-AT-LARGE ARE THREATENED WITHIRREPARABLE HARM

1. Removal of the Stacks Will Irreparably Harm Plaintiffs and thePublic at Large

"Irreparable injury, for purposes of equity, has been held to mean any injury for which money

damages are insufficient. Peyton v. PWV Acquisition LLC, 2013 WL 2165330 (Sup. Ct. N. Y. Co.

2013) (quoting L & M Franklyn Avenue, LLC v. S. Land Development, LLC, 98 A.D.3d 721, 722 (2d

Dep't. 2012). An injury is irreparable not only when "there is no certain pecuniary standard for the

measurement of damages" (67A N.Y. Jur.2d, Injunctions, § 18), but also when, as here, "the harm

in question cannot be undone" (Peyton, 2013 WL 2165330, *2).

The decision of the Appellate Division in Gramercy Co. v. Benenson, 223 A.D.2d 497 (1st

Dep't. 1996), is instructive. Gramercy Co. was an action in which the plaintiffs therein contested

a plan by the trustees of Gramercy Park to prune or cut down the park's trees. The court granted a

preliminary injunction prohibiting the cutting down or pruning of any trees without a written

recommendation from a certified arborist first being obtained. The First Department affirmed,

holding that a potential for irreparable harm existed, because "[djenial of injunctive relief would

render the final judgment ineffectual, since the trees, once cut down, cannot be replaced" (Gramercy

Co., 223 A.D.2d at 498; accord Green Harbour Homeowners' Association, Inc., v. Ermiger, 67

A.D.3d 1116, 1117 (3d Dep't. 2009) (threatened removal constitutes irreparable harm); Sforza v.

Nesconset Fire District, 184 A.D.2d 631, 632 (2d Dep't 1992)).

Similarly, if the Stacks were to be removed, they too could not be replaced. The seven stories

of iron and structural steel Stacks, among the most important early examples of a highly innovative

book storage system (Complaint ¶3), have served as part of the structural skeleton of the Central

17

Library since its construction was completed in 1911 (Id. '74). The Stacks structurally support the

floor of the historic Rose Reading Room situated directly above them (Id. ¶3). Removal of the

Stacks, and the concomitant offsite displacement of the materials they hold, endangers the Central

Library's status as one of the world's leading research facilities, and would irrevocably alter the

architectural integrity of the Central Library building, a New York City Landmark and National

Historic Landmark (Warren Aff. ¶9; Schmertz Aff. ¶9-10).

Under the CLP, the work to remove the Stacks, upon which the Central Library relies for

structural support, is slated to be performed while the Central Library, including the Rose Reading

Room, remains open. This imperils the public (Schmertz Aff. ¶1 0; Warren Aff. ¶9). Indeed, even

Tortorella, the President of the NYPL's own structural engineering firm, Silman PC, has

characterized removal of the Stacks as "cutting the legs off a table while dinner is being served"

(Jennifer Maloney, "Engineer Unpacks Plan for the Stacks," Wall Street Journal, January 15, 2013)

(Exh. 8).

In addition to altering the Central Library's structural integrity, and thereby creating an

unnecessary risk of harm to public safety, removal of the Stacks would irretrievably alter the Central

Library's architectural integrity, thereby threatening irreparable harm to its status as a National

Historic Landmark (Complaint ¶3). In the words of the late Ada Louise Huxtable, the Dean of New

York architecture critics, the CLP "is a plan devised out of a profound ignorance of, or willful

disregard for, not only the library's original concept and design, but also the folly of altering its

meaning and mission and compromising its historical and architectural integrity. You don't 'update'

a masterpiece" (Exh. 9). Similarly, The New York Times architecture critic Michael Kimmelman has

dismissed the proposed newly designed Central Library as having "all the elegance and distinction

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of a suburban mall" (Exh.8), while Bloomberg News critic James Russell described it as "thin

architectural gruel" (Exh. 10).

To be sure, once the Stacks are gone, they are gone for good. No sum of money can

compensate plaintiffs and the public-at-large for the impact of the absence of the Stacks and books

on their personal and professional lives, on their work, or on their revered landmark and the City.

Without question, there exists the threat of irreparable injury arising from removal of the Stacks.

2. Remote Displacement of Millions of Books to Offsite StorageFacilities Irreparably Harms Plaintiffs and the Public at Large

For many years, the Coalition of plaintiffs herein and scholars worldwide have relied upon

the immediate availability of research materials at the Central Library for their scholarly work (e.g.,

Complaint 116-7). As a result of the removal of the Stacks, and the resulting relocation to remote

offsite storage facilities of millions of books previously contained therein, plaintiffs and the public-

at-large have been, and in the future will be, caused to wait days (at a minimum) to retrieve research

materials that formerly were available to them in minutes. As with removal of the Stacks, no sum

of money can compensate plaintiffs and the public-at-large for the ongoing impairment of their

research. Clearly, irreparable injury exists arising from removal of the books.

B. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS

The second showing required for a preliminary injunction is probability of success on the

merits (Aetna Insurance Company, 75 N.Y.2d at 862), or at least the existence of sufficiently serious

questions going to the merits to make them a fair ground for litigation (Pashaian, 88 F.3d at 87).

As noted, where denial of injunctive relief would render the final judgment ineffectual (as it would

here), a movant's burden of showing probability of success is reduced (Gramercy Co., 223 A.D.2d

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at 498; Republic of Lebanon, 167 A.D.2d at 145). Moreover, since the purpose of injunctive relief

is to preserve the status quo until the merits can be deteifflined (360 West I I th LLC, 46 A.D.3d at

367; Moody, 146 A.D.2d at 678), the mere existence of a disputed issue of fact is insufficient to

preclude the granting of temporary or preliminary injunctive relief (see New York Civil Practice Law

and Rules §6312[c]).

1. "he NYPL and the City have Breached, and are Threatening toContimwto Breach. the 1978 JarTernent with. PA theDetriment of Plaintiffs and the Public-at-Large

The NYPL and the City have breached, and threaten a further breach of, the 1978 Agreement,

by planning for, and taking action that directly threatens, the imminent removal of the Stacks, which

action: (i) would constitute a structural alteration of the Central Library without permission from

PARKS, in violation of 117 of the 1978 Agreement (Exh. 3); and (ii) would constitute a breach of

defendants' obligation under ¶4 of the 1978 Agreement, by which defendants are obligated "to

protect and preserve the historical integrity of features, materials, appearance, workmanship and

environment" of the Central Library (Exh. 3). Indeed, the NYPL's removal of the millions of books

from the Stacks to offsite storage in New Jersey constitutes clear breach of the 1978 Agreement

requiring the NYPL and the City "to protect and preserve the historical integrity of features,

materials, appearance, . . . and environment" of the Central Library (Exh. 3).

Since plaintiffs are intended third-party beneficiaries of the 1978 Agreement, under which

the NYPL and the City explicitly "agree[d] to hold, maintain and administer [the Central Library]

for the benefit of the public at large" (Exh. 3 at ¶8) (emphasis added), they have legal standing to

enforce the 1978 Agreement (Gusinsky v. Genger, 2010 WL 4136175, *4 (Sup. Ct. N.Y. Co. 2010)

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("(h)ere, the terms of the Assurance indicate that Gusinsky was an intended beneficiary")). 6

2. The NYPL and its Board . of Trustees have Breached theirMandate and the Public Trust

In taking steps preparatory to the removal of the Stacks, the NYPL already has relocated

millions of books folluerly shelved in the Stacks to remote offsite storage facilities. The removal

of the Stacks would ensure that these books never come back, except at best in a piecemeal fashion,

as the Central Library will lack the seven stories of Stacks necessary to house, protect, and preserve

them. This vast displacement of rare books and original research materials (the "Displacement")

violates the NYPL' s Charter to the detriment of plaintiffs and the public-at-large.

To be sure, the Trustees of the Astor Library made clear early on their Conviction "that not

only the convenience of the public. but the preservation and safety of the library absolutely

demanded. that the books should not be lent out or taken from the library building, under any

circumstances. In a library of reference, intended for students, properly economical of time. and

often coming from a distance for consultation. the necessity for every book required being always

ready for examination without delay, must be apparent" (Exh. 4 at I.1, 4) (emphasis added).

The steps taken by the NYPL preparatory to the removal of the Stacks, including, without

limitation, the Displacement of millions of books to offsite storage facilities, constitute gross

breaches of the NYPL Charter, and, indeed, of the public trust. Members of the Coalition, as well

6In Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., Inc., 66 N.Y.2d 38 (1985), the Courtof Appeals stated: "we have emphasized when upholding the third party's right to enforce the contract thatno one other than the third party can recover if the promisor breaches the contract (internal citationsomitted), or that the language of the contract otherwise clearly evidences an intent to permit enforcementby the third party (internal citations omitted)" (id. at 45; emphasis added). Here, the 1978 Agreementcontains clear and unambiguous language indentifying the public-at-large as an intended third-partybeneficiary of the contract (Exh. 3 ¶8).

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as the public-at-large, are intended third-party beneficiaries of the Trust resolution requiring, inter

alia, that "the Astor and Lenox collections shall always remain in the library for use by readers

there" (Exh. 5). Without question, plaintiffs have standing to seek redress for this egregious breach

of trust by the NYPL and its Board of Trustees.

Even assuming, arguendo, that plaintiffs did not have standing to contest the removal of the

books as third-party beneficiaries of the settled and unchangeable plan requiring books to be kept

in the Central Library for their benefit (which they do), they most certainly have standing premised

upon the direct manner in which the NYPL's and the Board's breach of trust impacts them, as

distinguished from the public-at-large (Morris Aff. ¶8; Swan Aff. ¶9; Gough Affidavit ¶2; Complaint

116-7).

Accordingly, since the terms of the NYPL Charter as well as the breach of those terms are

clear, and since plaintiffs have standing to seek redress for that breach, they have demonstrated a

probability of success on the merits. At a minimum, sufficiently serious questions exist that go to

the merits, so as to make them a fair ground for litigation, warranting injunctive relief to preserve

the status quo until the merits can be determined (Pashaian, 88 F.3d at 87).

C. THE BALANCE OF THE EQUITIES TILTS IN PLAINTIFFS' FAVOR

As with the plaintiffs in Gramercy Co., the balance of equities tilts in favor of the plaintiffs

herein, who merely seek to maintain the status quo, and against the NYPL, the Board of Trustees,

and the City, which might well remove the Stacks if and when they were to obtain the requisite

governmental approvals (Gramercy Co., 223 A.D.2d at 498). Denial of injunctive relief would

render any final judgment in favor of plaintiffs moot, since the Stacks, once "cut down," cannot be

replaced (id.; Green Harbour Homeowners' Association, Inc., 67 A.D,3d at 1117; Sforza, 184

A.D.2d at 632.

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CONCLUSION

For all of the foregoing reasons, as well as for those reasons set forth in the accompanying

affirmation and affidavits, Plaintiffs' order to show cause for temporary and preliminary injunctive

relief should be granted in all respects.

Dated: New York, New YorkJuly 11, 2013

WEISS & HILLER, PCAttorneys for the Plaintiff600 Madison AvenueNew York, NY 10022-19-4000

1111C117—ibiLdi—et*M-ichael S. Hiller

David P. Rubinstein

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