City’s Response to PPW Lawsuit Matter-of-Factly Dismantles NBBL Claims

The lawsuit arguing for the removal of the Prospect Park West bike lane is back in court next Wednesday, and Kate Hinds at Transportation Nation has the legal brief in which the New York City Department of Transportation and the city Law Department respond to the charges leveled against DOT.

In new court papers, available above, the city lays out the reasons it decided to install a bike lane on Prospect Park West and proceeds to calmly dismantle the bike lane opponents’ lawsuit. The difference in tone between the city’s methodical argumentation and the insinuations of Gibson Dunn attorney Jim Walden, which were described by an NYU Law professor as “largely public relations,” is particularly striking.

Legally, the city’s lawyers point out that DOT need only have had some rational basis for installing the bike lane — a standard easily surpassed given the long history of public requests for traffic calming and better biking conditions on PPW — and that they ran afoul of neither environmental review regulations nor the city’s landmarks preservation process.

In addition to the legal arguments, the brief goes into detail about DOT’s data collection for the PPW project. From the beginning, the NBBL lawsuit has been used as a tool to undermine public confidence in how DOT selects and evaluates its street safety projects, and for the first time, you can see in this brief DOT’s official, comprehensive response to the allegations that the agency fudged data in evaluating the Prospect Park West bike lane. The brief elucidates in detail how, in fact, NBBL and Walden cherrypicked data to fit their narrative.

For example, when NBBL and Walden alleged that DOT counted crashes that didn’t happen on Prospect Park West, the city explains, they failed to understand how NYPD records traffic crashes at intersections. In those cases, police record one street as the “on” street and the other street as the cross street. Because most crashes occur at intersections, it is standard DOT practice to count a crash as occurring on a given street if it is listed as a “cross street” in the police report. NYPD may, for instance, record a crash that happened at the intersection of PPW and Third Street as happening “on” Third Street, with PPW as the cross street. When studying safety on the PPW corridor, DOT counts such a crash as happening on PPW, while NBBL would have disregarded such a crash, en route to compiling a dataset that doesn’t adhere to the methodology employed by DOT all over the city.

The city also notes that it is standard practice to use three-year averages to measure injury rates before a project is installed. This helps minimize the effect of statistical outliers that crop up when comparing smaller sample sizes.

Even if you only examine the crash stats from the last six months of 2009 and the last six months of 2010, as NBBL and Walden did, the most telling safety statistic — the number of crashes that cause injuries — dropped 50 percent. The plaintiffs never mention that statistic in their complaint. Instead, NBBL and Walden claimed the increase from four injuries on PPW in the second half of 2009 to five injuries in the second half of 2010 proves the lane to be a failure, but the brief explains that this was entirely due to a single crash in 2010 that caused four injuries.

In footnote after footnote, each argument is similarly dissected. As Streetsblog has already reported, because the bike lane is a “traffic control device,” it was specifically exempted from environmental review requirements, a case the city makes in great detail. With regards to the claim that the bike lane required landmarks review, the city shows that while either side of the street might be landmarked, the middle of it isn’t.

Technically, the city lawyers argue that this is all beside the point, in a strictly legal sense, because the bike lane opponents missed their chance to sue at the end of last October; by the time they filed, the city says, the statute of limitations had long passed.

These rational arguments contrast starkly with Walden’s hyperbolic, non-legal prose in his court papers. The city’s lawyers title their sections things like “DOT’s Determination to Install the PPW Project was a Rational Exercise of its Discretionary Authority.” The NBBL lawsuit includes a section titled, “The Ultimate Oxymoron: DOT’s Campaign to Justify the EBL As A ‘Traffic Calming’ Measure.”

Separately, City Council Member Brad Lander and former Brooklyn Community Board 6 Chair Richard Bashner each filed an amicus brief, available in full here and here, in support of the bike lane. Each presented the extensive public process that the bike lane went through before and after construction, stating that they believe the decisions reached by Community Board 6 represent the view of the majority of the area’s residents.

  • Anonymous

    Since when have facts stopped the rich and politically connected from getting whatever they want from our justice system?

  • Anonymous

    I don’t think the aim of the lawsuit was to prevail in court. It was to prevail -politically-. Putting pressure on the city/DOT to remove the bike lane, and no doubt, get JSK fired.

  • Community Member

    The City’s response and Lander and Bashner’s amicus brief makes Gibson Dunn attorney Jim Walden look like a complete amateur and an imbecile. What an embarrassment this guy is.

  • Shuck Chumer

    I’ve read both filings, NBBL’s and DOT’s. DOT’s looks like it was written by a lawyer with a high pedigree. NBBL’s looks like it was written by a lawyer who advertises on TV.

    Jim, my comment may be “potentially libelous,” but you are hardly worth the money NBBL is paying you.

  • Sedge

    And with that, audios worthless, trivial, boneheaded lawsuit!  Sorry rich and powerful, you might win a lot, but not always.  

  • gross

    Hooray for the internet!!!!

  • IWC Windows

    I don’t think the aim of the lawsuit was to prevail in court.

    IWC Windows

  • Bartel Pritchard

    How much will Louise Hainline owe the city’s taxpayers for wasting their money on this frivolous lawsuit? 

  • Anonymous

    Slam Dunk.

  • How interesting that the irrelevant gripes of Louise Hainline over the amount of documents she has received from her FOIL request on DoT play a front-and-center role in the NBBL Article 78 petition.

  • And where is the NBBL *amended* petition?  I don’t believe that has been posted on the internets.

  • Larry Littlefield

    So who got this judge his job.  I’m sorry, but based on what I read in the newspaper, Brooklyn justice is something I’m afraid of. 

    I bought a house and had a will written, and hopefully I will never have to deal with the legal system again.  Just another formerly revered institution now open to question.

  • dporpentine

    I just wish NBBL could get sued by Neighbors for Better Neighbors or Seniors for Sanity or some organization like that. Those pro bono-abusing twerps are wasting City money on this frivolous suit, all in hope of turning PPW back into a drag racing strip.

  • Tom

    Shuck: Your comments are probably not actionable until you are a member of the bar.  If you were, you’d already know that.
    LL: You, however, might be held in contempt of the court if the Justice is a real prick. 
    I do agree that getting drawn into a court case of one’s own choosing is not a wise move.  Something about muck and pigs who like to get mucky. 

  • Buckaroo

    Judge Bert Bunyan seems to have a good, solid, honest and straightforward record on the court.

    In February 2002 Borough President Marty Markowitz  awarded him a citation for “outstanding contributions to the Brooklyn community.”

    So, he couldn’t be all bad, right?

  • Brooklyn Biker

    This is a really nice piece of work by the City’s attorneys. It really is worth a full read if you have not done so already.

  • Brooklyn Biker

    This is a really nice piece of work by the City’s attorneys. It really is worth a full read if you have not done so already.

  • Shemp

    Hopefully this is the last of the sad intersection of Iris Weinshall and transportation in New York City.  

  • Awesome job. When people cherry pick data it stops being an argument and turns into mendacity. It is one thing to be ignorant, another to be willfully ignorant. When you get lots of data, most people would try to understand why it’s used the way it is, instead of thinking “well they are just lying” (such as re: how accidents at intersections are recorded)

    I am all for complete openness to the point where we shouldn’t need FOIA requests, but these ignorant people spreading falsehoods is one of the drawbacks. To paraphrase a famous quote: What these guys say in the morning gets all over the city before the truth seekers are finished putting on their shoes.

  • Jeff

    They’ve already won.  Can you think of a substantial bike project anywhere in the city proposed by DOT since this lawsuit was brought about?

  • Anna Davis

    You have mentioned good point here.I like your article and it really gives an outstanding idea that is very helpful for all the people.

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  • When ever someone cherry picks data they lose credibility and validity. To get the clear view go to this blog.


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