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Jim Walden

NBBL Subpoenas Not Yet Sanctioned By the Court, But Embraced By the Post

11:50 AM EDT on July 13, 2011

Two hours after Streetsblog published a post on Monday about the City University of New York's refusal to disclose former DOT Commissioner Iris Weinshall's correspondence about the Prospect Park West redesign, bike lane opponents spun up their publicity machine and spat out a press release from their PR firm, LCG Communications [PDF]. The release informed reporters that the opponents' "pro bono" lawyers, Jim Walden and Georgia Winston of Gibson, Dunn and Crutcher, had served subpoenas to NYC DOT and City Council Member Brad Lander in advance of next week's court hearing.

It was another chance for Walden to insert easily refutable accusations about the PPW project in the press. Walden sent out some subpoenas, so Rich Calder at the Post could dutifully quote him like so: "The city is desperately trying to avoid litigating the merits of our suit because it cannot justify its misuse of data and failure to conduct a proper safety study."

Never mind that the city's court filing demolished the opponents' claims about "misuse of data" and made it perfectly clear that DOT conducted its safety study the same way that other transportation agencies conduct them. There is no PR firm working that angle, and besides, that happened a few weeks ago. It's not news anymore. Nor, apparently, did most reporters think it was news at the time. No major dailies saw fit to run a story on it.

One thing Walden didn't mention in the press release is that the type of hearing where Brooklyn Supreme Court Judge Bert Bunyan will render a decision on the lawsuit -- known as an Article 78 proceeding -- rarely involves testimony. The city must only demonstrate that it followed proper procedure when installing the PPW redesign, according to legal experts who evaluated the plaintiffs' case for Streetsblog.

Another thing the opponents' PR firm didn't mention: Judge Bunyan had not even sanctioned testimony at the time Walden sent out the subpoenas, though it's possible he may decide to do so.

Mark Muschenheim, senior counsel at the NYC Law Department, said he will challenge Walden's subpoenas:

An evidentiary hearing is not warranted in this type of case. We will move to quash the subpoena, and are confident that our motion will be granted. Moreover, the documents filed with the court provide ample information for a decision to be made on the lawsuit's merits, and we believe that after a review of this record the court will support the City's actions.

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