Category: Blog Post

Court issues its decision upholding the BSA’s grandfathering

By Team ERFA,

Dear ERFA Friends, Neighbors and Concerned Citizens,

Just a few days ago we wrote to you to express our outrage that the Court had not yet rendered a decision on our Article 78 appeal seeking to reverse the Board of Standards and Appeals determination that “grandfathered” construction of a megatower at the 430 East 58th Street site rather than requiring the developer to conform to the new zoning which we all worked so hard to achieve.

Well, our wait is over but our outrage has only grown.

Yesterday, the Court issued its decision upholding the BSA’s grandfathering.

We wish we could tell you that the Court fairly considered our arguments before rejecting them in favor of the developer. But we cannot.

The Court’s written opinion lists the documents that were reviewed as a basis for reaching a decision, and it is alarming to see that – notwithstanding that 13 months have elapsed since our December 2018 hearing — much of the most important material our lawyer presented to cogently make our case to the Court was not even read. The Court appears to have been much more inclined to focus on the material submitted by the developer.

As you can imagine, we are shocked and appalled! The question now is, where do we go from here?

We are sending you this message today to expeditiously bring you up-to-date, but we need a little more time to evaluate the appropriate path forward.

We look forward to seeing you at our upcoming Town Hall meeting, scheduled for Thursday, January 23rd, 8 am at Morso Restaurant, 420 East 59th Street, to share more information and hear your opinions.


Your ERFA Leadership Team

Alan Kersh, Jessica Osborn, Lisa Mercurio and Eleanor Mascheroni


By Team ERFA,

Dear ERFA Friends, Neighbors and Concerned Citizens,

As many of you know, our battle is now entering its fifth year.

Yes. It has been five years since we undertook the arduous mission of rezoning the East River Fifties and successfully accomplished it. As we all know, despite our “win,” the developer challenged the rezoning and demanded an exception to the new zoning, and, largely as a result of its own brazenness, obtained approval from the Board of Standards & Appeals for a “grandfathering” of its megatower in our residential neighborhood.

Since that time, we have been fighting back with an Article 78 lawsuit in the New York State Supreme Court, where we have filed detailed and extensive papers showing why the Board of Standards & Appeals decision in favor of the developer was incorrect and should be reversed.

We have also asked the Court to grant us a preliminary injunction to prohibit the developer from continuing construction while our Article 78 case is pending. We are sorry to have to report to you that our request for a preliminary injunction was denied, appealed and then more recently, denied again.

Thus, as everyone can see from street level, the developer continues to push forward and work toward the completion of its building despite the fact that the Article 78 case still languishes inside the judge’s chambers without decision.

Please do not misconstrue the silence of our newsletters or lack of Town Halls as lack of cohesion, interest or even worse, an inclination to concede defeat. We have not lost energy, nor are we merely angry. We are furious.

And we are frustrated. We have found ourselves unable to provide clear answers with respect to the status of our case because they have not been forthcoming from the Court. Our lawyer has pressed forward and stressed the urgency of the matter, and the Court seemingly has recognized that delay is extraordinarily unfair to us. Nevertheless, more than a year has gone by since the December 2018 hearing, and still we have no decision from the Court.

Thus, we find ourselves between the proverbial rock and a hard place; in the absence of a decision — which we could either enforce or appeal, depending upon whether the Court decides for or against us — and without a preliminary injunction to maintain the status quo while we await that decision, we must wait. With each passing day, it becomes more and more difficult to imagine that this is “business as usual.”
The question remains, “What in the world has happened on East 58th Street?!!”

And even if we could appreciate how busy the court is, the building is inconsistent with the new zoning, grows more so every day, and a court decision has gone way past anticipated timing.

Our neighborhood, our community, our quality of life has been ignored. Residents are suffering through this construction as AHVs are being granted from 6:30 in the morning through 7 pm, and on weekends, ostensibly because the developer — the developer! — suffers “hardship.”

Our community is entitled to a decision on something that alleges egregious wrongdoing on the part of the developer.

We will have our first Town Hall of 2020 on the 23rd of January. Please join us and your many neighbors to voice your opinion and hear our plans to advance our circumstances.


Your ERFA Leadership Team,

Alan Kersh, Jessica Osborn, Lisa Mercurio and Eleanor Mascheroni

October 2019 Update

By Team ERFA,

Dear Concerned ERFA Members,

We are writing to update you regarding the construction at 430 East 58th Street and the status of the litigation pertaining to it. You have not heard from us recently because there has not been much “new” news to report, but we do want to share the most up-to-date information.

First of all: many of you have asked whether the fact that the construction is taking place means that we have lost the litigation to prevent a megatower at that site. In a word, the answer is “No.”

Our Article 78 case — in which we have asked the Court to reverse the “grandfathering” that was granted to the developer by the Board of Standards and Appeals — is still pending. We had hoped and expected to receive the Court’s decision long before now, but no decision has been rendered yet.

As we previously informed you, the reason that construction is continuing while the lawsuit is pending is that the Court denied our request for a preliminary injunction. Please be aware, though, that the denial is NOT a statement by the Court as to how the Article 78 case will ultimately be decided. In making that point, the judge’s order specifically stated “… the court does not [now] reach the merits of the petition…”

If ERFA ultimately prevails, the law would require the developer to demolish any portion of the construction that is inconsistent with the tower-on-a-base zoning that was adopted by the City Council in December 2017. We have recently apprised the Court of the speed with which construction has been progressing and, therefore, the increasing logistical complexity that demolition would entail. We believe that calling the judge’s attention to the “facts on the ground” will help to move the case to a decision.

Separately — regarding the after-hours (evening and weekend) construction activities that so many of you have justifiably complained about — here is a letter that Ben Kallos sent to the Department of Buildings on September 19th questioning why permits have been issued for such work.

Finally, we want to thank you for your patience and continued support throughout the rezoning process and ensuing hearings and litigation, and also to let you know that — despite the difficulty of getting the Department of Buildings to respond to complaints in a timely manner — you should nevertheless call 311 if you see construction activity that appears inappropriate.


Your ERFA Leadership Team

Alan Kersh, Jessica Osborn, Lisa Mercurio and Robert Shepler

Pending Further Order of the Court, No Construction at 428-432 East 58th St. Will Be Permitted Above 80 Feet Until At Least February 26, 2019

By Team ERFA,

New York, December 18, 2018 – The East River Fifties Alliance (ERFA), represented by co-counsels Michael Hiller and New York City Council Member Ben Kallos, have negotiated a Court-Ordered Stipulation that requires the developer trying to build an 800-foot-tall mega-tower on East 58th St. to notify the Court when the building reaches a height of 80 feet above grade level, at which time, the Court will schedule a hearing to determine whether any further construction will be permitted.

In its lawsuit, ERFA has argued, among other things, that the City’s Board of Standards and Appeals (BSA) illegally granted the developer a special exception to current zoning in order to build a supertall tower that would be filled with luxury apartments and would not provide for any affordable housing. Under the current zoning, which the developer seeks to avoid, the tower would have to be several hundred feet shorter and would be conducive to affordable housing.

The Court-Ordered Stipulation was negotiated while attorneys for ERFA, the developer and the BSA appeared in front of State Supreme Court Judge Debra A. James on December 11 for a hearing on the community group’s Article 78 proceeding against the BSA. At that time, the Developer’s lawyers represented to the Court that the 85-foot mark would constitute the point of no return for the proposed tower; according to the Developer’s lawyers, once the proposed tower were to exceed that height, it could not be built in conformity with current zoning.

During the December 11th hearing, the Court seemed to be receptive to ERFA’s argument that New York does not permit “grandfathering” exceptions to current zoning where the developer has engaged in construction activities that violate the law. ERFA has argued that the developer violated Department of Transportation and Department of Buildings permit requirements, creating hazards to the community, all in an effort to rush to complete the construction work.

Alan Kersh, ERFA President, said, “We know that the developer did not comply with all aspects of the law and, that the BSA did not act properly in granting an exception to proceed with construction of a supertall. Today’s stipulation is a significant milestone for a citizens’ group fighting overdevelopment in New York City.”

Mr. Hiller was critical of the City’s priorities, commenting: “I still cannot understand why the City would continue its efforts to twist the law into a pretzel in order to approve yet another luxury mega-tower at the expense of affordable housing.”

He added, “We are fortunate that the Judge in our case took the time during the hearing to focus on the issues and ask probing questions of the lawyers for the City and the developer in the court’s search for the truth. While there are certainly no guarantees as to the outcome, we remain optimistic that, owing to the strength of our case, the rule of law will prevail.”

“Developers can’t keep getting away with breaking the law. Public safety was endangered by after-hours variances and street closure permits that were issued under false pretenses and then not even complied with by the developer. We are in court to finally stop developers from perverting the law to harm communities when those laws were originally intended to protect residents,” said Council Member Ben Kallos, Pro Bono Co-Counsel for ERFA and a petitioner. “Thank you Michael Hiller for a strong argument for applying the law as written. Judge Debra A. James is a credit to our judiciary with her ability to handle diverse cases, digging into a complex subject matter, and asking tough questions that really got to the heart of the matter.”

If constructed, the proposed mega-tower would dwarf adjacent structures, which mostly consist of 5-6 story townhouses and small apartment buildings to the south. Neighborhood residents and every public official to have commented on the project have opposed it as wildly out-of-scale and part of a larger, unfortunate trend in the City to favor the interests of well-connected real-estate developers over the needs of the community.

Public officials who oppose the project include City Councilmembers Ben Kallos and Keith Powers, Manhattan Borough President Gale Brewer, State Senator Liz Krueger, State Assemblymember Dan Quart and Member of the House of Representatives, Carolyn Maloney.

The next court appearance has been scheduled for February 26, 2019.

In Case You Missed It: ERFA Town Hall

By Team ERFA,

Update from the East River Fifties Alliance
Alan Kersh, Jessica Osborn, Robert Shepler, and Lisa Mercurio


Thanks to one and all for attending the September 6, 2018 Town Hall. We were excited to have NY1 attend and cover the updates and experience the passion and steadfast resolve of our community to win our land-use battle. We were also thrilled to have Councilmember Ben Kallos attend and speak and cannot express our gratitude enough to him and all of the elected officials that have helped us arrive at this important juncture.

Many questions regarding our Article 78 filing were posed. If you are interested in reviewing the document itself, you can find it HERE.

Those who attended the meeting also raised questions regarding what to expect next and what they can do.

It is possible that construction at the 430 East 58th St. site will begin shortly. In that event, and pending the outcome of ERFA’s request for a temporary restraining order to halt all construction until the outcome of our legal challenge has been resolved, you must remain vigilant to infractions and report violations. The Department of Buildings allows for construction Monday to Friday between 7 am – 6 pm. Construction done outside of those hours on weekdays, or at any time on weekends, without a permit specifically allowing it (known as an after-hours variance, or “AHV”) is not allowed. We will let you know if and when AHVs are issued for weekend and late hours work.

Emergencies should be reported to 911. For ALL complaints (that are not emergencies) regarding or resulting from ongoing construction,
contact 311. This is critical since the 311 system is the only vehicle that the City uses to track complaints and violations. If there are multiple complaints about a problem, the City takes special notice. Complaints are also a factor in deciding whether to grant a variance allowing for after hours and weekend work.

Our formal hearing in front of our judge regarding our Article 78 filing is scheduled for October 11th. Please stay tuned for further confirmation and details regarding that date.

While this will not be a speaking opportunity, it is important for our community to appear in numbers. We welcome everyone’s attendance. Please mark your calendars accordingly.

As always, ERFA depends on your generous contributions to save the character and beauty of our residential neighborhood. Please HELP US KEEP THE FIGHT ALIVE. Please donate now.