PPW Bike Lane Case Adjourned Until July 20

Brooklyn Supreme Court Judge Bert Bunyan rendered no decision today on the lawsuit filed by opponents of the Prospect Park West bike lane against the City of New York and Transportation Commissioner Janette Sadik-Khan. Bunyan adjourned the case until July 20 after the plaintiffs asked for time to review documents they recently obtained via a freedom of information request from Council Member Brad Lander’s office.

The plaintiffs are also asking for Judge Bunyan to grant discovery, which would permit them to depose people under oath. That could turn into another round of media spectacle for the case, but discovery is rarely granted in this type of legal proceeding, known as an Article 78.

From a legal perspective, the question of whether the PPW bike lane was a “trial” project has now become central to the case. Before the opponents can make their argument that DOT acted in an “arbitrary and capricious” manner by installing a bike lane that was requested and approved by the local community board, they have to demonstrate that the PPW redesign was a trial project installed on an interim basis. Otherwise, the case can be dismissed because the plaintiffs sued eight months after the lane was installed, and the statute of limitations to file such a suit expires four months after the completion of a permanent project.

DOT says the agency always presented the PPW project as a permanent redesign. In an affidavit [PDF] submitted with the city’s legal brief, bike and pedestrian program director Joshua Benson testified that he did not recall any DOT staff stating that the PPW bike lane was a trial project. He also pointed out that several DOT projects are identified as pilots or trials — examples include the Times Square pedestrian plazas and the expansion of pedestrian zones on Allen and Pike Streets — and that the PPW project was never designated as anything of the sort.

The plaintiffs’ attorney, Jim Walden, hopes to use the documents obtained from Lander’s office to advance his argument that DOT said the bike lane was a trial project. At an open house on the bike lane in April, 2010, Lander told Streetsblog that “if we’re wrong in big ways” about the bike lane’s effect on safety and traffic, “we’ll have to reconsider.”

In his affidavit, Benson says he publicly corrected the “trial project” perception when it surfaced at a CB 6 transportation committee meeting later that month. Since DOT was the implementing agency and the plaintiffs are suing the city, not the City Council, it’s hard to see how the Lander documents will be relevant.

From a media perspective, it will be interesting to see whether NBBL and their PR firm are able to insert any material from the Lander FOIL in the press. So far they’ve been quite skillful at getting their point of view regurgitated by the media.

  • Anonymous

    I seem to remember DOT at a transportation committee meeting at the Library where the GAP plans were presented stating that the PPW changes were not an experiment.

  • Larry Littlefield

    Delay, delay, delay.  That’s the game.

  • J

    It sounds like for NBBL it’s longshot just to have the case be heard. I almost don’t want  the case to be dismissed because of timing issues. That way the “arbitrary and capricious” arguments against DOT can be heard and dismissed one by one, preventing this type of lawsuit in the future.

  • Louise Painline

    The only reason to FOIL him is to find one or two salacious emails from radical pro-EBL lobbyists and get someone at the Post or Natalie O’Neill at the Brooklyn Paper to print the juicy bits.  Despite filing an amicus brief, Lander is not named in this lawsuit and even if he went around calling PPW an “EBL” it would have no bearing on the case against the DOT.  It’s an attempt to win the media war, nothing more.

    I wonder how the rank-and-file members of NBBL feel about being pawns in Iris Weinshall and Jim Walden’s attempts to discredit a popular city council member?

  • Anonymous

    Yah, but, it’s good of the judge to allow them the delay so that they can review the e-mails. 

    Sure, the e-mails aren’t probative in the least, and their entire legal claim shouldn’t pass SJ (do they have those in Art 78’s?), but, by allowing the Plaintiff’s the time to review the e-mails, the judge is closing another small door that the Plaintiff’s could raise on appeal.

  • DVH

    Correction!

    Change this:

    The plaintiffs’ attorney, Jim Walden, hopes to use the documents obtained from Lander’s office to advance his argument that DOT said the bike lane was a trial project.

    To this:

    The plaintiffs’ attorney, Jim Walden, hopes to use the documents obtained from Lander’s office to continue to wage his media smear campaign against the City Councilman, the Community Board and members of the community who worked to make PPW a safer and more inclusive street.

  • This is pathetic. Article 78 is supposed to be a streamlined, expeditious procedure for quickly settling bona fide questions about the legitimacy of government action.  Here, NBBL is fighting to delay its Article 78 suit as long as possible to gain maximum air time for it’s real objective–scorched-earth spin of FOIL documents to “reveal” an imaginary “conspiracy.”

    It doesn’t matter whether Community Board members or even Brad Lander described the PPW lane as a “trial.”  First of all, the Community Boards and City council are not representatives of DoT and their understandings do not bind the DoT.  Second, that there was a “trial” of the project does not mean it doesn’t reflect final agency action for purposes of the four-month limitioins period.  The project was a traffic calming project and DoT reached a final determination that there needed to be lane reducations on PPW to make it safe.  They put in a bike lane where the eliminated lane had been–let’s say they “tried” this appraoch to traffic calming for a “trial” period.  If 9as the bombastic rhetoric of Walden would have it) there were 1,000 casualties due to the bike lane, Dot could remove the bike lane and “try” a pedestrian plaza in its place for a “trial” period. Even projects reflecting a final agency determination can (and of course should) be monitored and if necessary changed after the installation.  The cases NBBL is citing talk about changes anounced as “temporary” and “conditional.” “Trial”–even if that terminology was endorsed by DoT, and apparently it wasn’t–is very different than “temporary” or “conditional.”

    Bottom line, what NBBL is fighting against is the PPW MV lane reduction.  They had four month from the date of the MV lane reduction to sue, and they waited twice that long.  Now they are just trying to do maximum damage as they ride out their meritless lawsuit. 

    Judge Bunyan please decide this suit July 20.

  • Is Walden’s comment that the DOT and Sadik-Khan wouldn’t care about 1,000 deaths nor change anything about PPW in response considered “potentially libelous”?