Waller v. City of New York, Temporary Restraining Order by J. Lucy Billings and Plaintiffs Pleading...

8/3/2019 Waller v. City of New York, Temporary Restraining Order by J. Lucy Billings and Plaintiffs Pleading on Order to Show

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In the Matter of the Applicationof

Jennifer Waller,&&

Petitioners/Plaintiffs,

For a Judgment Pursuant to Articles78,30 and 63 of the CivilPractice Law and Rules,and 42 USC 66 1983and 1988,

-against-

THE CITY OF NEWYORK, NEW YORK CITY MAYORMICHAEL BLOOMBERG, THE NEW YORK CITY POLICEDEPARTMENT, NEW YORK CITY POLICE DEPARTMENTCOMMISSIONERRAYMOND KELLY, FIRE DEPARTMENTOF THE CITYOF NEW YORK, FIRE DEPARTMENTOFTHE CITY OF NEW YORK COMM ISSIONER SALVATORECASSANO, BROOKFIELD OFFICE PROPERTIES, INC.,RICHARD B. CLARK, BROOKFIELDPROPERTIES, INC.

CHIEF EXECUTIVE OFFICER, et al.,

1111 2 9 5 7ORDER TO SHOWCAUSE ANDTEMPORARYRESTRAININGORDER

Filed:November 15,2011

Index No.:/2011

RJI No.:

ORDER TO SHOW CAUSE AND TEMPORARY RESTRAINING ORDER

TO THE ABOVE NAMED RESPONDENTS/DEFENDANTS:V O 4 ~ W ~

Upon the annexedAAfJm&mh of GIDEON ORION OLIVER, ESQ., one of

petitioners'/plaintiffs' attorneys associated with the New York City Chapterof the National

Lawyers Guild, sworn to on November 15, 2011, with the attached exhibits, and upon good

cause being shown,

Let the respondentddefendmtsshow cause before this Court at IAS Part % n Room 20g

at the New York County Supreme Court Courthouse a t - Street in the county, city and71 PW

Supreme Court Records OnLine Library - page 1 of 9


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state of New York at f l :a . M M o n NovemberE, 201 1, or as soon thereafter as counsel

may be heard, why an Order should not be entered pursuant toCPLR Articles 78 , 30 and 63 and

42 USC F J ~ 983 an/J-B$ granting the8rehm inary relief requested below.@vyY r

An answer and answe rs will be servedon peti t ioyrdplazffs at torney by

email by - .M. only papers will be served by email by -.M. on

N ow

SUFFICIENT CAUSE APPEARING THEREFOR, let service of a copy of this order,

and the papers upon which it is granted, on each of theNew York City respondents/defendantnts,

by delivering true copieso w apers $5 by h f : O o A . M * , on or

before the/51day or dd-

w i d % 4 w ~ y &dk

, 2011, be deemedgood and sufficient.

SUFFICIENT CAUSE APPEARING THEREFOR, let service of a copy of this order,

and the papers upon which it is granted, on each of the Brookfield PropertiesWsJvlccrQwL*kg*S &IIu.iLL

respondents/defendants, by delivering true copies on by e

&mp.wl. , o n or before the q d a yor d , 2011, be deemedv

good and sufficient.

IT IS FURTHER ORDERED1 hat,until this matteris heard on the date set forth above,

respondentddefendants are prohibited from:m a r l b q P r Y k , W 1 . L a t

(a) Evicting lpw fd protesters fr o rn JA b & + kWZuccoti park and/or MS 7 ~ r

(b)

b WD

Enforcing t h e m rules published after the occupation began or otherwise

preventing protesters from re-entering the park with tents and other property previously utilized.

Dated: New York, New YorkNovember 15 ,2011

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ATTORN

J.S.C.

EYS FOR PETITIONERS/PLAINTIFFS:

Gideon Orion Oliver,Esq.299 Broadway, Suite806New York, NY 10007

Margaret Ratner Kunstler,Esq.14 Seventh AvenueBrooklyn?NY 11213

Michael Ratner,Esq.666 Broadway, 7th FloorNew York, NY 10012

Alan Levine, Esq.99 Hudson Street, 14h FloorNew York, NY 10013

Daniel L. Alterman,Esq.Alterman & Boop, LL P35 Worth StreetNew York, NY 10013

Robert J. Boyle, Esq.299 Broadway, Suite806New York, NY 10007

Yetta G. Kurland, Esq.350 Broadway, Suite 701New York, NY 10013

Joel R. Kupferman,Esq.35 1 Broadway, Suite400New York, NY 10013

Jane Moisan,Esq.350 Broadway, Suite 701

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New York, NY 10013

Meghan Maurus,Esq.Of Counsel, Gideon Orion Oliver299 Broadway, Suite806New York, NY 10007

Bina Ahmad, Esq.Of Counsel, Gideon OrionOliver299 Broadway, Suite806New York, NY 10007

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SUPREME COURTOF TH E STATE OF NEW YORKCOUNTY OF THE NEW YORK

In the Matterof the Application of

Jennifer Waller,d.,

Petitioners/Plaintiffs,

For a Judgment Pursuant to Articles 7 8, 30 and63 of the CivilPractice Law and Rules, and42 USC 56 1983and 1988,

-against-

THE CITY OF NEW YORK, NEW YORK CITYMAYORMICHAEL BLOOMBERG,THE NEW YORK CITY POLICEDEPARTMENT, NEW YORK CITY POLICE DEPARTMENTCOMMISSIONER RAYMOND KELLY, FIRE DEPARTMENTOF THE CITY OF NEW YORK, FIRE DEPARTMENT OFTHE CITY OF NEW YORK COMMISSIONER SALVATORECASSANO, BROOKFIELD OFFICE PROPERTIES, INC.,RICHARD B. CLARK, BROOKFIELDPROPERTIES, INC.CHIEF EXECUTIVE OFFICER, etal.,

PPdiled:

November 15,20 11

Index No.:/201

RJI No.:

Venue pursuant to CPLR5506(b) is set in New YorkCounty where the materialevents took place.



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10 07,1-

couk&f the* tate of Ne w York, affirms under penalty of erjury as follows: %/ h , , h + p J d J e c b f & h . c K l y l ~ J v n ~ f s racrdi3 @1. I am among the attorneys for the Petitioners/Plaintiffs (Petitioners) in thisk i t #

m a

preliminary injunction against Respondents/Defendants (Respondents).

of Petitioners application fora temporary restraining order or a

2. Petitioners case is meritorious.

3, Liberty Park, a/k/a Zucotti Park, is a traditional public forum located within

walking distanceof Wall Street in lower Manhattan.

4. Liberty Park is a privately owned public spaceand a special permit plaza

under New York Citys applicable zoning resolutions and special permittinglaws and

procedures.As such, Brookfields and the Citys authority to limit access to and usesof the park

are circumscribed.

5 . For nearly two months, hundreds and thousandsof people have peacefully

occupied Liberty Park, exercising their rights protected under the First Amendmentof the United

States Constitution and the attendant provisionsof the New York State Constitution peaceably to

express themselves, assemble, and engage in related protected expressive conduct.

6. The core expressive conduct involves a symbolic occupationof a traditional

public forum.The messages being conveyed by the occupiers requireA24-hour occupationand

tents, tarps, and the like. The around-the-clock OWS protest has come to symbolize the belief

that people have the rightto occupy public spaces in order to press the government to meet the

needs of its people.

7. Prior to the occupation, Liberty Parkwas open 24 hours a day, seven days a week,



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and there were no rules regarding Liberty Parks use by the public.

8. In fact, Ne w York Citys applicable zoning resolutions, special permitting laws

and procedures, and other rules prohibit Brookfield from closing Liberty Park or unreasonably

regulating publicuse of Liberty Park su a sponte.

9. After the occupation began, actingultra vires, Respondents created rules

designed to target the expressive conduct constituting and enabling the occupation.A copy of

those rules is attached as ExhibitA.

10. Upon information and belief, neither Brookfield nor the City has ever enforced

those rules in the past.

11. Since the beginningof the occupation, the occupiers have consulted regularly

with community representatives and persons with public health expertise t a s u r e that @

conditions in Liberty Park conform to health, sanitary, and safety standards.

12. Designated occupiers have been responsible to maintain those standards and each

day persons were assigned to &sure that the park was maintained in a healthy and safe condition.@

13. At around 1 OOAM on November 15,2 011, agents of the Respondents, including

NYPD agents, surroundedand forcibly took Liberty Park, unlawfully evicting occupiers andQ5d6

destroying and/or seizing their property. o==m-4. Attached as ExhibitB is a copy of a notice that was handed out to some inconnection with the eviction.

15. Attached as ExhibitC is a copy of the November 15 ,20 11 Affidavit of* Lvi#ayo(t.(.l

16. The eviction wasultra vires, unlawful, unreasonable, arbitrary and capricious, bIia* P b U A ,

unconstitutional, and was effected in violation of occupiers and bystanders rights protectedd d - d wcd

under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution.01s ~ 4 ~ +,&miy ;&

*Cep17, Plaintiffs will supplement the record with pleadings and other documents

expeditiously.

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18. Affirmant respectfully asks that the Court grant Petitioners' request for a

temporary restraining order andlor preliminary injunction:

(a) Enjoining the respondents from evicting lawful protesters from LibertyParWZuccoti Park;

(b) Permitting all protesters to re-enter the park with tents and other gear previously

utilized;

(c) Returning a ll property seized from protesters; and

(b)Granting such further reliefas may seem just and proper.

@p. There has been no prior application for the relief requested herein.Dated: New York, New York

November 15,20 11



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To

Attorney(s) for

Signature (Rule 130-1.1-a)

Print name beneath

Service of a copy of the within is hereby admitted.

Dated:

PLEASE TAKE NOTICE:

U NOTICE OF ENTRV

that the within is a [cert i f ied) ru e copy of a

duly ErtteTed in the off i ce of the clerk of th e within named court on

-.

NOTICE OF SETTLEMENT

that an order of which th e within is a ..will be presented for settlement to the HON.within n a m e d C o u r t , atOn at

ru e copyone of the judges of th e

M.

Waller v. City of New York, Temporary Restraining Order by J. Lucy Billings and Plaintiffs Pleading...

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