Category: Blog Post

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.


ERFA Files Lawsuit against Gamma

By Team ERFA,

On Sunday, August 26, 2018, ERFA filed its lawsuit against Gamma.  ERFA is asking for a judge to stop construction on the tower and ensure that anything built on the site in the future is in compliance with the new zoning.

Catch up on ERFA in the news, and read the Article 78 filing.

Crains’s New York Business

East Side residents sue to stop condo tower

Click here

The Real Deal

Locals make last-ditch effort to block Gamma’s UES tower

Click here

 New York Business Journal

Upper East Side alliance rallies against Gamma Real Estate

Click here

Come to the Town Hall at Morso at 8 am on September 6th to get an in person update from ERFA leadership.  


By Team ERFA,

Dear All,

The impressive participation at the July 12th Town Hall meeting showed our community’s unyielding commitment to TAKE ACTION to bring the 430 East 58th Street development site into compliance with the new zoning law that was enacted by the City Council last November. The developer should not be exempted from having to abide by the same law that now applies to everyone else in the neighborhood!

For those of you who could not attend, here’s an overall summary of the points that were made:

  • ERFA achieved a zoning change, enacted by the NYC City Council on November 30, 2017, to prevent the construction of megatowers in the East River Fifties.
  • The developer of the 430 East 58th Street site then applied to the Board of Standards & Appeals to be exempted from the new law and allowed to construct a megatower.
  • On June 26, 2018, the BSA granted the developer’s request for an exemption.
  • ERFA will commence a legal action known as an Article 78 proceeding in the Supreme Court of the State of New York seeking to reverse the BSA’s decision.
  • The community’s support is essential to achieving this goal. Please give to the cause, by following this link.

 At the Town Hall meeting on July 12th, we discussed the history of ERFA’s quest to save the East River Fifties and what the continuing fight will entail. Here are the answers to various questions that were covered:

Q. How did we get to the point where we are now?

A. In brief, the major events leading up to the present time are:

  • In 2015, when we became aware of a developer’s intention to construct a 1,000 ft. tall megatower at 430 East 58th Street, we realized that a 1960s-era zoning law posed a threat to our entire neighborhood. We began discussing possible solutions to the problem with the NYC Dept. of City Planning (“DCP”)
  • On January 21, 2016, after several months of discussion and analysis, ERFA submitted a proposal to DCP to re-zone the East River Fifties (the area from 51st Street to 59th Street, east of First Avenue) so as to prevent the construction of megatowers and provide for affordable housing.
  • Almost two years later, on November 15, 2017, after much additional discussion and negotiation with DCP — and our submission of hundreds of pages of supporting documents — the NYC Planning Commission (“CPC”) approved a zoning change applying tower-on-a-base (“TOB”) standards to new construction in the East River Fifties. (TOB standards serve as a “functional height limit” by imposing size and design requirements which, in effect, limit building heights.)
  • However — At the last minute before approving the zoning change, CPC inserted a “grandfathering” exception to allow construction of the megatower that had been planned by the developer of the 430 East 58th Street construction site — the same site that alerted us to the need for overall re-zoning in the first place. (See June 17, 2018, Daily News article, Law firm owed $300G by de Blasio lobbied mayor’s top aides, won big favor for high-rise developer””
  • The final step necessary to achieve the rezoning was a vote by the City Council. On November 30, 2017, the rezoning was enacted into law by a City Council vote of 45-0 (with one abstention). Importantly — In enacting the rezoning, the City Council specifically removed the grandfathering provision that had been inserted by CPC, thus making the developer subject to the new law.
  • In December 2017, the developer again sought to grandfather the 430 East 58th Street development site by applying to the Board of Standards & Appeals (“BSA”) for permission to do so. Under the NYC Zoning Resolution, the BSA may grant such permission if a developer made “substantial progress” on a building’s foundation prior to a zoning change and also met certain other requirements. The developer claimed that it had met those standards.
  • In hearings conducted by the BSA on April 10th and June 19th, 2018, ERFA presented a great deal of evidence and made numerous arguments why the BSA should NOT approve the developer’s application for grandfathering. As part of that presentation, ERFA provided compelling evidence that the Dept. of Buildings (“DOB”) and Dept. of Transportation (“DOT”) permits that had been issued to allow extensive after-hours (i.e., weekend) work on the foundation were invalid, and that therefore, the work performed pursuant to those permits – which included the pouring of 73% of the foundation’s concrete – should not be counted in the calculation of whether “substantial progress” had been made.
  • Despite the evidence we presented, the BSA voted on June 26, 2018 to approve the developer’s application. In other words, the BSA gave the developer a green light (in legal terminology, a “vested right”) to construct the above-ground portion of the building after completing the foundation. See June 26, 2018 Daily News article, Client of lobbyist law firm Mayor de Blasio owes big money to wins approval for tower from mayor-appointed board.”


Q. What is the next step?

A. Although the BSA voted in favor of the developer at its June 26th meeting, the matter is on hold – so to speak – until the BSA issues its written decision. Pending the written decision, the developer may not do any work at the site, nor may ERFA commence legal action to reverse the BSA decision. Based on the most recent information from the BSA, we expect the written decision will be issued at the end of July or beginning of August.


Q. ERFA has said it will go to court to challenge the BSA decision. How and when will that happen?

A. ERFA will file papers with the NY State Supreme Court to commence what is known as an Article 78 proceeding. The papers to start the proceeding (an “Article 78 petition”) can’t be filed until the BSA issues its written decision. Once the BSA’s decision is issued, the deadline for filing the Article 78 petition will be 30 days after that.


Q. What exactly is an Article 78 proceeding?

A. Article 78 is the portion of the New York State Civil Practice Law and Rules (CPLR) – the rules governing all civil actions in New York courts — that sets out the legal procedure for challenging determinations of administrative agencies or other governmental bodies. The person challenging a determination is called the “Petitioner” and the person defending the determination is called the “Respondent.”  In our case, ERFA will file an “Article 78 petition” to challenge the BSA’s decision to grandfather the 430 East 58th Street project. We will argue that in issuing that decision, the BSA failed to comply with the applicable law (the requirements of the Zoning Resolution), and we will ask the court to reverse the BSA decision.


Q. What is the timing for an Article 78 proceeding?

A. Article 78 proceedings can vary in length from a few months to several years, depending upon the subject matter and the arguments that are made by the parties. Based on currently available information, we anticipate that our Article 78 proceeding will last for one or two years.


Q. What is the name of the lawyer who will represent ERFA at the Article 78 proceeding?

A. Michael Hiller, Esq. represented ERFA at the BSA hearings and will also represent ERFA at the Article 78 proceeding.


Q. Can the developer continue constructing the building while the Article 78 proceeding is ongoing?

A. Once the BSA issues its written decision, the developer will have the legal right to renew its building permit with the DOB and continue construction. We don’t know whether or how soon the developer would actually take that step. If the developer does resume construction, we intend to immediately apply to the court for a Temporary Restraining Order and then a Preliminary Injunction to prohibit further construction until the Article 78 proceeding is completed.


Q. If ERFA is not granted a Preliminary Injunction and the developer continues construction, what will happen if ERFA ultimately wins the Article 78 proceeding?

A.The law provides that the developer would have to remove the newly-built structure if it does not comply with the zoning that was enacted by the City Council on November 30th.


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