NBBL Attorney Jumps on New York Times Story to Press His Case in Court

The lawsuit seeking to eradicate the Prospect Park West bike lane may be shaky and borderline-frivolous, but Jim Walden, the lawyer representing the bike lane opponents, seems to have luck on his side this week. The source of his good fortune: A front page New York Times story on Bloomberg administration pilot programs. In a letter written the same day the story was published [PDF], Walden told Brooklyn Supreme Court Judge Bert Bunyan that the piece illustrates “precisely the issue we raised during our June 22 conference with the Court.”

That Wednesday, Walden was in court arguing that the Prospect Park West bike lane was installed as a trial project last summer. He has to prove to Judge Bunyan that NYC DOT presented the redesign as an interim treatment, or else the anti-bike lane lawsuit has no standing in court. There is a four-month statute of limitations on the type of complaint filed by the PPW opponents, known as an Article 78, and the plaintiffs filed suit in March 2011, eight months after the city installed the redesign. So Walden’s shot at keeping the case alive hinges on convincing the judge that the city called the project a “trial,” and the installation itself did not set the four-month clock ticking. (Needless to say, we are deep in the legal weeds at this point, and far from the core contention in the lawsuit, that DOT acted in an “arbitrary and capricious” manner by installing the bike lane after years of public process.)

The problem for Walden is that bike lanes are not installed on a trial basis, and from the get-go, the city has not characterized the Prospect Park West project as anything other than a permanent redesign. In a sworn affidavit [PDF], DOT bike and pedestrian director Josh Benson said he publicly corrected the perception that the bike lane was a trial project at a Community Board 6 hearing last year. Walden has asserted that his “trial” theory will be borne out by documents he obtained from Council Member Brad Lander’s office through a freedom of information request. At the hearing last week, Judge Bunyan adjourned the case until July 20 to give Walden more time to review those documents.

Enter the New York Times. As luck would have it, the Times ran a story on page A1 this Monday — “‘Pilot’ Label Lets Mayor’s Projects Skip City Review” — about Bloomberg administration pilot programs, giving prominent attention to DOT initiatives under commissioner Janette Sadik-Khan. Curiously, the story repeatedly referred to bike lanes to illustrate its point, even though bike lanes are all presented to community boards and receive as much public review, if not more, as they did under previous mayors and DOT commissioners. The article erroneously stated that “painting bike lanes green” is a trial program.

Later that day, Walden sent a letter to Judge Bunyan, asking for the case to be adjourned until September 7 to give him more time to submit more FOIL requests. The primary basis for his request was the New York Times story:

I write on behalf of Petitioners Seniors for Safety and Neighbors for Better Bike Lanes (collectively “Petitioners”) to bring an article from today’s New York Times, entitled “‘Pilot’ Label Lets Mayor’s Projects Skip City Review” to the Court’s attention. The article, a copy of which is attached, highlights precisely the issue we raised on June 22: namely, that the City frequently presents new programs and initiatives as “pilots” and “trials” in order to avoid compliance with required legal processes and public reviews and to blunt potential criticism of the projects — only to make the projects permanent without any further review. Indeed, the article specifically notes that Respondents, “[t]he Transportation Department and its commissioner, Janette Sadik-Khan, have begun more than a dozen trial programs in recent years, like allowing pop-up sidewalk cafes or painting bike lanes green.”

Lucky or not, Walden doesn’t seem to be arguing from a position of strength here. The Prospect Park West redesign quite clearly did not skirt any stage of public review, with Community Board 6 having approved it in 2009, after asking the city to study a two-way protected bike lane in 2007. There’s no reference in Walden’s letter to any information from the piles of documents he’s already obtained from DOT and Lander’s office. Not even any citation in the Times story referring to the Prospect Park West project as a “pilot.” He’s leaning quite heavily on a misleading headline that happens to align well with his talking points, but does not reflect the actual subject of his lawsuit at all.

Below, the letter in full:

Walden New York Times Letter

  • Jeff

    Really?  This is really how it works?  When my grandmother finds an article in a magazine with the word “bicycle” in it, clips it out, and mails it to me, this can be used to change the fate of a real live court case?  Really?

  • Permament

    Michael Grynbaum may yet turn out to be a bigger enemy to safe streets and the well being of Brooklynites than Iris Weinshall and Jim Walden.

    Then again, Walden is a worse lawyer than Grynbaum is a journalist. If his whole case hinges on an installation date and a potential missed deadline, he’s pretty JV for such a hot shot.

  • Permament

    Michael Grynbaum may yet turn out to be a bigger enemy to safe streets and the well being of Brooklynites than Iris Weinshall and Jim Walden.

    Then again, Walden is a worse lawyer than Grynbaum is a journalist. If his whole case hinges on an installation date and a potential missed deadline, he’s pretty JV for such a hot shot.

  • Larry Littlefield

    “Later that day, Walden sent a letter to Judge Bunyan, asking for the case to be adjourned until September 7.”

    That’s what this is all about.  Delay, delay, delay.

  • J

    Thankfully, this is not how it works, and Jim Walden knows it. His actions, however, are simply grandstanding to smear Bloomberg and this project as much as possible, which is really what this lawsuit was all about in the first place.

  • LC

    Since the adjournment was granted so that Walden could go over the FOIL documents from Lander’s office, I doubt a judge will look too favorably on getting this kind of garbage such as it’s unrelated to the original request.

    Tip to Jim Walden: file your lawsuits on time.  That way, even the ones without merit will have a chance of being heard.

  • Mark Walker

    The frivolous lawsuit and journalistic malpractice have the same motivation — to generate bad publicity that will chill livable-streets innovation for the rest of Bloomberg’s term and into the next administration. They’ve been remarkably effective. We’re already seeing the results in DOT’s capitulation on pedestrian islands in Borough Park, which essentially trades safety for speed and parking. The takeaway is that it’s not enough to follow all the rules and do everything by the book. You also have to seize the public imagination. In fact, you have to seize it BACK from the car-ad-supported press, which NBBL has played like a violin.

  • While a lawyer might send a subsequently-decided legal authority to a Judge to supplement briefing already in, it is astonishing that Walden sent Grynbaum’s article to the Judge.  The suggestion is, “see, this reporter says that the city has a custom of deceiving people in general in this certain way.  That makes the claim that my client was deceived in that certain way more likely to be true.”  No sane judge would credit that argument, based on that evidence.

  • Mark

    I hope that the Times prints some corrections to fix the errors in its article.

  • Anonymous

    I find myself “irked.”

  • Anonymous

    “That’s what this is all about.  Delay, delay, delay”

    Or: “Force the city to waste taxpayer money, waste taxpayer money, waste taxpayer money.”

    Wasn’t one of NBBL’s many complaints that the city was “wasting money”?  Yeah.

  • Anonymous

    Am I the only one who suspects that NBBL’s public relations firm convinced Grynbaum to publish the story that NBBL is now relying on in court?

  • Larry Littlefield

    Well this practice is hardly unique to this suit.  It is what the law has devolved into …a tool of injustice in which delays and the cost of delays by lawsuits themselves are used to benefit existing privileged interests.

    On the criminal side, poor people sit in jail for months waiting for their case to be heard.

    Wealthy defendants play the game too, dragging out cases to negotiate penalties far below what is deserved.

    Here’s what these types of law firms do in their day jobs.

    http://www.bloomberg.com/news/2011-06-30/jpmorgan-scores-victory-for-repeat-offenders-jonathan-weil.html

    “Read just about any article in the financial press about a Securities and Exchange Commission settlement with some accused fraudster, and you probably will see two lines bound to get a lot of eyes rolling.””One is that the defendant neither admitted nor denied the SEC’s claims. The other is that the penalties include a court injunction or SEC order barring the alleged crook from breaking the securities laws in the future, as if it had been perfectly legal to violate them beforehand. No one, it seems, ever gets nailed for anything.””As if that weren’t maddening enough, here’s an open secret: The SEC hardly ever enforces these obey-the-law orders.”But then, pushing on with the cases might take years, and the SEC has been defunded forever.

  • Anonymous

    Haha,

    This reminds me of Dick Cheney.  

    Like the time he leaked to the NYT all that Saddam BS (which were all lies).  And then, he went on Meet the Press and cited the NYT story as evidence of Saddam being a threat (his own leaks).

    And where’s Mr. Charles Komanoff?  I want to give him a “I told you so!”

    ***

    They should depose the attorney and ask if they had anything to do whatsoever with the story being placed in the NYT.

  • Anonymous

    “No sane judge would credit that argument, based on that evidence”.
    This is Brooklyn Supreme Court where anything goes.  Also, it’s a court of equity so they can do pretty much whatever they want.  And I’ve had judges rule in a manner, that was explicitly not permitted by statutute, to make a point. 

    Though I agree.  The article legally means nothing.   It’s too general (and filled with errors).

  • Professor X

    So, NBBL via its Gibson Dunn litigator, essentially managed to get its key talking point presented on page A1 of the NYT above the fold at just the perfect moment, three days after arguing this very same arcane point in court.

    I truly hope this is just an incredible coincidence. Otherwise, this kind of thing deeply shakes my faith in the New York Times and American journalism, in general.

    As much as I might like to bitch and moan about the Times, I still consider it one of the truly great practitioners of journalism in America today. I still count the NYT, to some degree, to function as a somewhat objective arbiter of reality and setter of agendas. If people like NBBL, Iris Weinshall and Jim Walden — people we know are pushing false accusations and misinformation into the public realm for petty, venal and selfish reasons — if these people are able to get their talking points published on the front page of the NYT at-will… well, frankly, that terrifies me.

  • Anonymous

    @station44025:disqus 

    You wrote: “[And] [f]orce the city to waste taxpayer money, waste taxpayer money, waste taxpayer money.”

    Actually, no taxpayer money is wasted in defending this lawsuit.  The New York City Corporation Counsel defends all civil lawsuits on behalf of the city.  This is just one case of many.

    More concerning, is the PR aspect, which others have highlighted.  So long as this is in the news, DOT is going to be gun-shy and will try to tone down their projects, which we have already been witnessing.

    So, to summarize, this lawsuit will/won’t:

    Will not revert PPW.  It will delay and/or prevent the implementation of other much needed, and especially the bolder, bike lane projects.

    ***

    I’d love to see a protected bike lane up and down 4th ave in BK.  But, I doubt JSK would be willing to try given all the NIMBYism in Brooklyn (though 4th ave sucks, so, maybe people would see it as an improvement?)

  • Professor X

    If the PPW legal tactics look like typical Republican hit-job tactics, that might be because Jim Walden’s law firm, Gibson Dunn & Crutcher, represented George W. Bush. They’re a big Republican political power player. Former Deputy Mayor from the Giuliani Administration, Randy Mastro runs the political side of their NYC operation. Lord knows Jim Walden isn’t smart enough to pull this stuff off. A lot of it stinks of Mastro.

  • Daphna

    The DOT acted in an “arbitrary and capricious” manner when they installed bollards on either side of the Manhattan Bridge.  No community input was sought.  No advance warning was given to the community.  The bollards create a dangerous condition.  There are no bollards channeling motorists into extremely narrow passageways on either side of the Manhattan Bridge and thus there should not be that condition for bicyclists.  This case would fit the pro bono standards since it is advancing rights (bicyclists have a right to safe infrastructure), or it could be brought by some bicyclists of limited means.  Do you think Jim Walden of Gibson, Dunn and Crutcher would take the case???

  • wkgreen

    … or, for that matter, the bollard at the Bklyn side of the Bklyn Bridge that is placed at the exact location where entering cyclists are transitioning from one of the most insane of major vehicular intersections at Tillary and Adams to shared lanes with pedestrians on the bridge approach. Add in that it also is surfaced with brushed stainless steel that visually blends with the surrounding concrete. I damned near ran into it the first time that I encountered it.  There was obviously no cyclist represented on the design review committee that approved these things.

  • wkgreen

    … or, for that matter, the bollard at the Bklyn side of the Bklyn Bridge that is placed at the exact location where entering cyclists are transitioning from one of the most insane of major vehicular intersections at Tillary and Adams to shared lanes with pedestrians on the bridge approach. Add in that it also is surfaced with brushed stainless steel that visually blends with the surrounding concrete. I damned near ran into it the first time that I encountered it.  There was obviously no cyclist represented on the design review committee that approved these things.

  • wkgreen

    … or, for that matter, the bollard at the Bklyn side of the Bklyn Bridge that is placed at the exact location where entering cyclists are transitioning from one of the most insane of major vehicular intersections at Tillary and Adams to shared lanes with pedestrians on the bridge approach. Add in that it also is surfaced with brushed stainless steel that visually blends with the surrounding concrete. I damned near ran into it the first time that I encountered it.  There was obviously no cyclist represented on the design review committee that approved these things.

  • dporpentine

    “And where’s Mr. Charles Komanoff?  I want to give him a ‘I told you so!'”

    He’s formulating twelve questions. about why people want to hurt his feelings.

  • Andrew

    @Geck:disqus No, you are not.

  • Myob1776

    How about “NBBL Attorney Infringes NY Times Copyright to Press Case Against PPW Bike Lane”?  The web reprint he attached to his letter was “for your personal, noncommercial use only.”  But hey, why let a little thing like copyright stand in the way of a good clean obfuscation?     

  • Gibby Dunn

    Gibson Dunn & Crutcher attorney Jim Walden is a complete embarrassment to Gibson Dunn & Cruthcer.  If this is the level of intellectual ability they attract and the type of person they’d put on a high-profile case like this, I shudder to think how they represent legitimate cases. 

  • Station44025

    @nattyb

    Where does the budget for the corporation council come from, or the costs of the trial, including judge’s salary, court reporters, courts infrastructure, etc. come from? This is a serious question, not snark. I assumed it all came out of public funds. Will NBBL have to reimburse for all that if they lose?

  • Rob

    The Times’ reporting on PPW has made me reconsider it as a source of top-flight journalism. 

  • Anonymous

    @2d1f4485f4071d40973ef0f25d75ed14:disqus 

    It comes from the taxpayers. 

    But, unless they need to hire more people specifically for this case, then, it’s hard to say it’s costing the taxpayers any more money than otherwise. 

    To address the concern of unduly burdening the courts, we have the requirement that cases cannot be frivilous, otherwise, the attorney’s  open themselves up to sanctions and fines.  

  • krstrois

    @geck:twitter  I do think the reporters received the press release and opportunistically wrote from it. I’m not sure the PR firm “convinced” them to do it via phone calls or additional pressure. Many reporters, esp on dailies, are overworked and exhausted and only too happy to have their work done for them — this release provided a lot of “cover” with its seeming nod toward good government issues. The whole thing is a mess. 

  • Anonymous

    I wonder what important position he will be offered by Schumer as his reward!

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