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Index No. 5210/2011 lAS Part 8 Justice Bunyan
SENIORS FOR SAFETY, an unincorporated association, by and in the name of its President, Lois Carswell, and NEIGHBORS FOR BETTER BIKE LANES, an unincorporated association, by and in the name of its President, Louise Hainline, Petitioners, For Judgment Pursuant to CPLR Article 78 - againstNEW YORK CITY DEPARTMENT OF TRANSPORTATION, and COMMISSIONER JANETTE SADIK-KHAN, Respondents.
GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue, 47th Floor New York, New York 10166-0193 Telephone: (212) 351-3825 Facsimile: (212) 351-5219
Dated: New York, New York September 26, 2011
For the reasons set forth below, Petitioners respectfully move for permission to appeal from the part of this Court's Decision and Order, dated August 15, 2011 (the "Decision and Order"), dismissing certain of Petitioners' claims on statute of limitations grounds, in the event an appeal may not be taken as of right.
On April 8, 2011, Petitioners Seniors for Safety and Neighbors for Better Bike Lanes filed an Article 78 Amended Petition challenging Respondents' installation of a bike lane on Prospect Park West in Brooklyn (the "PPW bike lane"). Specifically, Petitioners challenged
Respondents' permanent installation of the PPW bike lane, failure to accurately and impartially analyze and present data regarding the effect of the PPW bike lane on traffic and safety, and failure to conduct required environmental contrary to law. Petitioners and other reviews, as arbitrary, capricious, and Respondent New York City Department of
also challenged
Transportation's ("DOT") failure to comply with its statutory obligations under the Freedom of Information Law ("FOIL"). By Decision and Order dated August 15, 2011, this Court disposed of the Amended Petition. The Court dismissed Petitioners' claims relating to the PPW bike lane as barred by the statute of limitations.! The Court granted Petitioners' FOIL claim, ordering DOT to produce all
responsive, non-exempt documents.
The Court also denied as moot Petitioners' amended motion for expedited discovery, given its dismissal of Petitioners' claims related to the PPW bike lane as time-barred. As reflected in their Notice of Appeal, Petitioners appeal from that part of the Decision and Order as well, as it derived entirely from the Court's dismissal of Petitioners' lane-related claims and relates directly to the bases for Petitioners' appeal. To the extent necessary, Petitioners also request permission to appeal from the Court's Decision and Order denying its motion for expedited discovery as moot.
The Court directed Respondents' counsel to serve a copy of the Decision and Order with "notice of entry pursuant to CPLR 2103(b) and 5513(a)" within 14 days of entry. On August 29, 2011, Respondents served its Notice of Entry by mail. ARGUMENT The Decision and Order constitutes a "judgment" that is appealable as of right pursuant to CPLR § 5701 (a)(1), and Petitioners have filed a notice of appeal in this Court. 5515(1).
See CPLR §
However, in the alternative and out of an abundance of caution, if the Decision and
Order is construed as an "order" in an Article 78 proceeding that is not appealable as of right, see
id. §§ 5701(b)(1), (c), Petitioners seek permission to appeal.
The Decision and Order Constitutes A "Final Judgment" Appealable As Of Right Despite its nominal label, the Decision and Order constitutes a "judgment" appealable as
of right for several reasons.
First, an Article 78 proceeding concludes in a "judgment," not an
order, and the Decision and Order terminated this Article 78 proceeding and Petitioners' claims.
Id §§ 411, 7806. In dismissing Petitioners' claims related to the installation of the PPW bike
lane as time-barred and granting Petitioners' FOIL claim, the Decision and Order finally
determined Petitioners' rights to prosecute the causes of action in their Amended Petition with respect to the installation of the PPW bike lane. This is the sine qua non of a "judgment." See
id. § 5011 (defining a "judgment" as the "determination of the rights of the parties").
Indeed, courts have consistently "judgments" appealable
construed Article 78 decisions labeled "orders" as
as of right, holding that the name attached to a decision is not
controlling. Rather, the practical consequences of the decision to be appealed, including whether it grants the relief sought or disposes of claims in the manner of a judgment, control. See, e.g.,
Matter of Horizon Roofing & Sheetmetal
v. City of Glens Falls, 205 A.D.2d 916, 916 (3d Dep't
1994) (observing that trial court "disposed of the entire proceeding on the merits" and holding that trial court's dismissal of Article 78 claims was appealable as of right); Matter of M&M Partnership v. Sweenor, 210 A.D.2d 575, 576 (3d Dep't 1994) (holding that despite nominal title of trial court decision, "where the entire proceeding has been resolved, the relief sought has been granted and a judgment is final, an appeal to [the Appellate Division] lies as of right"); Bri-Mar Corp. v. Town Board, 145 A.D.2d 704, 705 (3d Dep't 1988), rev'd on other grounds, 74 N.Y.2d 826 (1989) (holding that "notwithstanding the language and designation used by the Supreme Court, it is clear that the petition's dismissal by the Supreme Court was a final disposition on the merits and is a final judgment" appealable as of right); DePaula v. Memory Gardens, Inc., 90 A.D.2d 886, 887 (3d Dep't 1982) ("Special Term's denomination of the result of [Article 78] proceeding as a 'final order' rather than a 'judgment'" did not preclude appeal as of right). On the other hand, true orders in Article 78 proceedings typically involve non-final evidentiary or ministerial decisions and are not appealable as of right. See, e.g., City of Newark v. Law Dep't of City of New York, 8 A.D.3d 152, 153 (1st Dep't 2004) (requiring permission to appeal non-final order that was "akin to an evidentiary or scheduling ruling"). Moreover, this Court directed Respondents' counsel to serve a copy of the Decision and Order with "notice of entry pursuant to CPLR 2103(b) and 5513(a)" within 14 days of entry. Since section 5513(a) applies only to appeals as of right, this Court's citation to § 55 13(a) further indicates that the Decision and Order constitutes a "judgment" appealable as of right. II. In The Alternative, This Court Should Grant Permission To Appeal If the Court determines that the Decision and Order constitutes an "order" in an Article 78 proceeding that is not appealable as of right, it should grant Petitioners permission to appeal.
CPLR § 5701(c) provides that an "appeal may be taken to the appellate division from any order which is not appealable as a matter of right in any action originating in the supreme court ... by permission of the judge who made the order." Permission to appeal an order in an Article 78 proceeding may be granted in a wide variety of circumstances. For example, courts may
grant permission to appeal an order that "aggrieves" the party seeking permission, see, e.g., Dukuly v. Aponte, 204 A.D.2d 189, 189 (1st Dep't 1994) (granting permission to appeal, sua sponte, an order annulling agency's determination and remanding matter to agency for a hearing); where the issues presented in the appeal are "substantial," see Arbor Hill Partners v. New York State Div. of Hous. & Community Renewal, 156 A.D.2d 896, 899 (3d Dep't 1989) (granting permission to appeal order in Article 78 proceeding which remitted the matter to the agency on the grounds that "the issue presented is a substantial one"); or where doing so is "in the interest of justice," see, e.g., Peckham v. Calogero, 54 A.D.3d 27, 30-31 (lst Dep't 2008) (finding that "justice dictates" that court grant permission to appeal court's ruling on Article 78 petition); Sonaike v. Jenious, 285 A.D.2d 457, 457 (2d Dep't 2001) (granting application to appeal "in the interest of justice"). Moreover, when a decision arguably is appealable as a matter of right,
permission to appeal may be more freely granted. See, e.g., Hoopes v. Carota, 142 A.D.2d 906, 908 (3d Dep't 1988) (granting permission to appeal an order where it was "highly arguable" that the order could be appealed as of right); Nemeroff Realty Corp. v. Kerr, 38 A.D.2d 437, 439-40 (2d Dep't 1972) (weighing likelihood that trial court's decision was appealable as of right before indicating that permission to appeal would be granted). All of these factors militate in favor of granting permission to appeal here. The Decision and Order finally disposed of the Amended Petition and determined Petitioners' rights with respect to its claims regarding the installation of the bike lane and its FOIL appeal, making
appeal procedurally appropriate.
Indeed, in dismissing the Amended Petition's first four claims
on statute of limitations grounds, the Decision and Order clearly "aggrieved" Petitioners by denying further opportunity to challenge DOT's decision to install the PPW bike lane. On these bases
Moreover, the Court's "Decision and Order" is likely appealable as of right. alone, permission to appeal should be granted.
In addition, Petitioners respectfully submit that an appeal will present substantial factual and legal questions. Specifically, an appeal will permit review, in light of the case law
mandating that statute of limitations disputes be construed against the agency asserting the defense, of Petitioners' evidence that the PPW bike lane was installed on a "trial" basis, and that Respondents did not decide to permanently install the lane until January 2011. The questions to be raised thus involve sharply disputed factual and legal issues that merit appellate consideration. Finally, in granting permission to appeal, numerous courts have cited the "importance" of the issues presented in the underlying order to be appeal. See, e.g., Matter of Swartz v. Wallace, 87 A.D.2d at 927 (permitting appeal sua sponte from trial court's order denying Article 78 application to annual a zoning determination); Nemeroff, 38 A.D.2d at 440 (permitting appeal sua sponte from the trial court's order annulling a town's Director of Planning's determination regarding Petitioners a site plan). Petitioners' claims also present issues of significant importance.
submitted substantial
evidence that Respondents,
a public City agency and its
commissioner, failed to conduct required environmental and landmarks reviews, failed to follow the procedures it publicly promised to follow, conducted a biased study, and withheld crucial information from the public. For these reasons as well, permission to appeal should be granted. In light of the finality of the decision to be appealed, the terminal effect of that decision on Petitioners' rights to pursue their claims related to the PPW bike lane, the public importance
of those claims, and the significance of the questions on appeal, this Court should grant Petitioners' motion for permission to appeal the Decision and Order, in the interests of justice, assuming an appeal may not be taken as of right.
Dated: New York, New York September 26, 2011 GIBSON, By:
200 Park Avenue Ne rk, New York 10166-0193 Telep one: (212) 351-4000 Facsimile: (212) 351-4035 Attorneys for Petitioners Seniors for Safety and Neighbors for Better Bike Lanes
Index No. 5210/2011 lAS Part 8 Justice Bunyan
SENIORS FOR SAFETY, an unincorporated association, by and in the name of its President, Lois Carswell, and NEIGHBORS FOR BETTER BIKE LANES, an unincorporated association, by and in the name of its President, Louise Hainline, Petitioners, For Judgment Pursuant to CPLR Article 78 - againstNEW YORK CITY DEPARTMENT OF TRANSPORTATION, and COMMISSIONER JANETTE SADIK-KHAN, Respondents.
PLEASE TAKE NOTICE that upon the Affirmation of Jim Walden, dated September 26,2011, with exhibits thereto, and Petitioners' Memorandum of Law in Support of Motion for Permission to Appeal, the prior pleadings and proceedings in this matter, and for good cause shown, Petitioners, by their undersigned attorneys, will move this Court located at 360 Adams Street, Brooklyn, New York on the lIth day of October 2011, pursuant to CPLR 5516, or as soon thereafter as Counsel can be heard, for an order pursuant to CPLR 5516 and 5701(c) granting Petitioners permission to appeal from part of this Court's Decision and Order, dated August 15,2011, dismissing certain of Petitioners' claims on statute oflimitations grounds and
denying Petitioners' amended motion for expedited discovery as moot, in the event an appeal may not be taken as of right, together with such other relief as the Court deems just and proper. PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2214(b), Respondents' answering papers, if any, are required to be served by hand upon the undersigned by October 4, 2011, and Petitioners' reply affidavits, if any, will be served by hand on October 10, 2011.
Dated: New York, New York September 26, 2011
k Avenue, 47th Floor ew ork, New York 10166-0193 hone: (212) 351-4000 Facsimile: (212) 351-4035 Attorneys for Petitioners Seniors for Safety and Neighbors for Better Bike Lanes
Index No. 5210111 lAS Part 8 Justice Bunyan
SENIORS FOR SAFETY, an unincorporated association, by and in the name of its President, Lois Carswell, and NEIGHBORS FOR BETTER BIKE LANES, an unincorporated association, by and in the name of its President, Louise Hainline, Petitioners, For Judgment Pursuant to CPLR Article 78 - againstNEW YORK CITY DEPARTMENT OF TRANSPORTATION, and COMMISSIONER JANETTE SADIK-KHAN, Respondents.
PLEASE TAKE NOTICE that Petitioners, Seniors for Safety and Neighbors for Better Bike Lanes, hereby appeal to the Appellate Division of the Supreme Court of the State of New York for the Second Department from that part of the judgment of this Court, dated August 15th, 2011 and denominated a "Decision and Order," dismissing certain of Petitioners' claims on statute of limitations grounds and denying Petitioners' amended motion for expedited discovery as moot.
Dated: New York, New York September 26, 2011 Respectfully submitted, RUTCHERLLP By: 200 P k A enue, 47th Floor New Y rk, ew York 10166-0193 Telepho e: (212) 351-4000 Facsimile: (212) 351-4035 Attorneys for Petitioners Seniors for Safety and Neighbors for Better Bike Lanes
Michael A Cardozo Corporation Counsel for the City of New York 100 Church Street New York, NY 10007 Tel.: (212) 442-0573 Fax: (212) 788-1145 Attorney for Respondents
201Uo5210Declslonand or'!:.-dated 8/15/11 (Page 1 of
At an lAS Part 8 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 15th day of August, 20 II. PRESENT: HON. BERT A. BUNYAN, In the Matter of the Application of
~~-.. -- -- - - - - - --. -- - -- - . - --- - . -- -- --- -x
SENIORS FOR SAFETY, an unincorporated association, by and in the name of its president, tors CARSWELL, and NEIGHBORS FOR BETTER BIKE LANES, an unincorporated association, by and in the name of its president, LOUiSE HAfNLrNE,
For Judgment Pursuant to CPLR Article 78
- against ~
NEW YORK CITY DEPARTMENT OF TRANSPORTATION and JANETTE SADlK-I(HAN, Commissioner of
Index No. 5210/11 (Seq. Nos. 1-4)
Transportation, in her official capacity, Respondents.
Papers N\@!bered
Original Petition:
Notice of Article 78 Petition and Verified Petition Affirmation of Jim Walden in Support of Petitioners' Verified Petition Affidavit of Eric R. Fox
Original Discovery Motion:
Notice of Motion for Expedited Discovery Memorandum of Law in Support of Motion for Expedited Discovery Amended Petition: Notice of Amended Article 78 Petition and Verified Amended Petition Affirmation of Jim Walden in Support of Petitioners' Verified Amended Petition Affidavit of Eric R. Fox Verified Answer with Affidavits of Joshua Benson, Nairn Rasheed, Jared Knowles, and Penny Jackson
7-8 9 lO 11-15
DeciSion dated 8/15/112 29,.,_-------------and order (Page of
Memorandum of Law in Opposition to the Petition Petitioners' Verified Reply to Respondents' Answer Affirmation of Jim Walden in Support of Petitioners , Verified Reply to Respondents' Answer Petitioners' Reply Memorandum in Support ofthcir Article 78 Petition and in Support of lbeirMotion for Expedited Discovery Affidavit of Marty Markowitz Affidavit of Janette Sadik-Khan Amended Discovery Motion: Notice of Motion for Expedited Discovery Memorandum of Law in Support of Motion for Expedited Discovery Respondents' Memorandum of Law in Opposition Amici Papers in Support of Respondents' Position:
Affidavit of Brad Lander
16 17 18 19 20 21
Affida vit of Richard Bashner Brief with Regards to Community Involvement in the Planning and Construction of the Bikeway Counsel Letters to the Court and to the Opposing Parties: Petitioners' May 10,2011 Letter Petitioners'May 17,2011 Letter Petitioners • June 27, 2011 Letter Respondents' June 30, 2011 Letter Petitioners' July 18,2011 Letter Respondents' July 19,2011 Letter Respondents' July 21,2011 Leiter Petitioners' July 22, 2011 Letter
26 27
30 31
33 34 35
This CPLR article 78 proceeding challenges the propriety of the construction and post-construction implementation of a bikeway on Prospect Park West in Brooklyn, New York.' Prospect Park West is a 0.9 mile-long southbound one-way street extending from
r. "Bikeway" is a generic term used by the New York City Department of Transportation for (1) bicycle paths physically separated from traffic lanes, also known as Class I bike paths, (2) bicycle lanes which are directly adjacent to a traffic lane, also known as Class ITbike lanes, and (3) bicycle routes which share a traffic Jane (see Affidavit ofJoshua Benson [DOT), at 2, n 1). The bikeway at issue belongs to the first category.
DeciSIonand order dated 8/15/11 (Page 3 of 29','. --
Union Street to Bartel Pritchard Square.'
Its west side sidewalk abuts residential and
commercial buildings; its east side sidewalk abuts Prospect Park. Before the construction of the bikeway, Prospect Park West, which is 49 feet wide, consisted of three traffic lanes: (1) a 19-foot wide combined parking/traffic lane adjacent to the west or the residential section of the sidewalk, (2) an l l-foot wide traffic lane in the middle of Prospect Park West; and (3) a 19-[00t wide combined parking/traffic lane adjacent to the east or the park section of the sidewalk. In the summer of201O, respondent New York City Department of Transportation (DOT) constructed the bikeway at issue. To do so, DOT redesigned the 19-foot wide combined parking/moving lane adjacent to the east sidewalk by separating it into three parallel zones: (1) an 8-foot wide floating parking lane adjacent to the middle traffic lane, (2) a 3-foot wide buffer zone painted with rumble strips, and (3) an 8-foot wide, two-way bicycle lane adjacent to the east sidewalk (hereinafter, the bikeway). DOT also installed flashing yellow warning signals to bicyclists at signalized intersections and
re-timed traffic signals.'
2. See Apr. 12,2010 Presentation by DOT to CB-6, "Parking Lane Widths" and "Bicycle Network and Proposed Design" slides (Answer, Ex. I); Affidavit of Joshua Benson (DOT), at 17, n 17.
See Jan. 20,2011 Presentation by DOT to CB-6, "Project Summary" slide (Answer. Ex. P).
2011/5210 and oedston order dated 8/15/11 4of 29·'1-""---------------(Page
In this CPLR article 78 proceeding commenced by verified petition, dated March 7, 2011, as amended on April 8, 2011 (the amended petition),' the petitioners Seniors for Safety (SFS), an unincorporated association, by its president, Lois Carswell, and Neighbors for Better Bike Lanes (NBBL), an unincorporated association, by its president, Louise Hainline (collectively, petitioners) assert two separate claims: (I) an annulment as "arbitrary and irrational" of the decision of the respondents DOT and its Commissioner Janette Sadik-Khan (collectively, respondents) to construct and implement the bikeway
(m! 151-157
[First Cause of Action]) (hereinafter, the bikeway claim),' and (2) a demand for a more complete response to the November 12, 20 I0 Freedom of Informati on Law (FOIL) request No. 27294 to DOT concerning the bikeway (~ 179-180 [Fifth Cause of Action J)
(hereinafter, the FOIL claim)." Respondents have interposed a verified answer to the amended petition, asserting, among other things, that the bikeway claim is barred by the
4. The original petition. dated Mar. 7,2011, in sequence No.1 has been superseded by the amended petition, dated Apr. 8,2011, in sequence No.3; the original discovery motion, dated Mar. 7, 2011, in sequence No.2 has been superseded by the amended discovery motion, dated Apr. 8, 2011, in sequence No.4. See Petitioners' May 10, 2011 letter, at 2. 5. In the remaining causes of action comprising the bikeway claim, petitioners allege that DOT failed to refer its plan for the construction of the bikeway to the Landmarks Preservation Commission (LPC) before approving and implementing it (~ 159~164 (Second Cause of Action]), and that DOT failed to comply with the State Environmental Quality Review Act (SEQRA) and the City Environmental Quality Review (CEQR) (m! 166-171 [Third Cause of Action] and~' 113·177 [Alternative Fourth Cause of Action]). 6. A copy of petitioners' FOIL request to DOT is reproduced as Ex. 29 to the Affirmation of Jim Walden.
2011/5210 Decision and order dated
8(15/11 (Page 5 of29·r-----------------~-----------
statute of limitations (~ 138 [First Affirmative Defensel). petitioners' FOIL claim is timely.
There is no dispute that
Concurrently, petitioners move by amended notice of motion for leave to conduct expedited discovery with respect to their bikeway claim. More particularly, petitioners seek production of27 categories of documents, as well as depositions of the Commissioner, two additional named employees of DOT, and one additional employee to be designated by DOT as having knowledge of DOT's relevant data collection and analysis.' Respondents oppose the amended discovery motion. The Bikeway Claim The threshold issue is whether petitioners' bikeway claim is timely. In accordance with CPLR 217 (1), "a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner or the person whom he represents in law or in fact .. ," Conversely, pursuant to CPLR 780 1(1), an article 78 proceeding "shall not be used to challenge a determination ... which is not final or can be adequately reviewed by appeal to a court or to some other body or officer or where the body or officer making the determination is expressly authorized by statute to rehear the matter upon the petitioner's application ... " An administrative determination becomes "final and binding" when two requirements are met:
(1) completeness or finality of the determination, and (2) exhaustion of administrative
See Exs. 58-62 to the Affirmation of Jim Walden. 5
2011/S210 Dedslonand order dated 8/15/11 (Page 6 of
"First, the agency must have reached a definitive position on the issue that
inflicts actual, concrete injury and second, the injury inflicted may not be ... significantly ameliorated by further administrative action or by steps available to the complaining party" (Walton vNew York State Dept. of Correctional Services, 8 NY3d 186,194 [2007] (internal quotation marks omitted]). An "actual, concrete injury" generally occurs "when the
challenged action has its impact" (Matter of Platt v Town of Southampton, 46 AD3d 907, 908 [2d Dept 2007]). By way of illustration, the Second Department recently dismissed the portion of a homeowner's article 78 proceeding which sought the removal of the sand dunes that interfered with his property, noting that "[tjhe determination to construct the dunes in the first instance was final and binding, at the latest, when the dunes were erected" (Matter
0/ Agoglia
v Benepe, 84 AD3d 1072, 1075 [2011]). The complementary exhaustion-ofrequirement ensures that the challenged action may not be significantly
ameliorated by further administrative action or by steps available to the complaining party. For example, the Second Department held that, when a municipal agency had selected the site for a sanitation garage, its initial selection of the site commenced the running of the
of limitations for article 78 purposes, even though it made subsequent incidental or
technological changes in the plans to minimize the project's impact on the surrounding roadways (see Matter of Douglaston & Little Neck Coalition v Sexton, 145 AD2d 480, 481
and order dated
8/15/11 (Page 7
For purposes of the statute of limitations analysis of the bikeway claim, the relevant chronology of events is as follows: April 16, 2009: DOT made a presentation to the Transportation Committee of Brooklyn Community Board 6 (CB-6), whose jurisdiction includes Prospect Park West, regarding the proposed construction of the bikeway. 8 The minutes of the CB-6
Transportation Committee reflect that "the committee support[ s] the proposal to close one lane and provide a 2-way bike lane but include north bound signalization and south bound signalization and daylighting.:" public notice had been provided. May-July. 2009: On May 13,2009, at its general meeting open to the public, CB·6 conditionally approved DOT's "proposal to reduce from 3 to 2 driving lanes and install twoway bicycle lanes in the parking lane with a painted median [i.e., the buffer zone] on the eastside of Prospect Park West between Union Street and Bartel Pritchard Square.':" At the same time, CB-6 conveyed to DOT the following concerns: (1) that the bikeway should be regulated by a separate set of traffic signals, (2) that loading zones should be installed, The April 16ib meeting was open to the public and prior
~.A copy of this presentation is annexed to the Answer as Ex. G.
See Affidavit of Richard Bashner (then Chairperson of CB-6), Ex. N.
See July 13, 2009 letter from CB·6 to DOT Brooklyn Borough Commissioner (Answer, Ex. C); Affidavit of Richard Bashner, ~ 12.
Dedslon and omer dated 8/15/11 (Page B of
and (3) that the buffer zone should be in the form of a fully built-out raised median. By letter dated July 13, 2009, CB-6 communicated its conditional approval to DOT. March 1, 2010: The Brooklyn Borough President and the Commissioner met
discuss the proposed bikeway. The parties' recollections of what exactly was said at that meeting differ. According to the Borough President, the Commissioner told him that the bikeway would be implemented on a "trial" basis, that DOT would study the bikeway once it was constructed, that any decision to finalize the bikeway would be based on the data collected during its study, and that if its study revealed that the bikeway was a failure, DOT would modify the bikeway or even remove it altogether.
On the other hand, the
Commissioner avers that during the March 1, 2010 meeting she did not identify the bikeway as a trial or pilot project and that the bikeway was never conceived or discussed by DOT as such, 12 Rather, according to the Commissioner, she advised the Borough President that DOT would not initially construct certain features as part of the bikeway and that after its construction and during its implementation. DOT simply would be monitoring its performance.
April 20 10: On April 12, 2010, at an open house sponsored by local council members,
DOT made a presentation to the CB-6 Transportation Committee concerning the proposed
See Affidavit of Marty Markowitz, dated July 18, 2011, mJ6-7. See Affidavit of Janette Sadik-Khan, dated July 19,20 L1> ~ 2.
u,~ 4.
2011/5210 D€dsIon and order dated 8/15/11 (Page
90t 29),----------------------------updated its members on the status of the
bikeway. Two days 1ater, Chairperson ofCB-6 proposed bikeway, noting:
"DOT has been largely responsive to OUf suggestions so yellow flashing traffic signals for the bicyclists, north and southbound, will be included in their initial plans and, assuming the new configuration works as it is expected to, with funding from our Council Members they are also open to the idea of building out the traffic medians to separate the parked cars from the two-way bicycle traffic. .. DOT has agreed to attend our upcoming meeting of our Transportation Committee to share their implementation plans. They are targeting a summer
On April 29, 2010, DOT made another presentation
the CB-6 Transportation Committee
where it specifically advised the CB-6 Transportation Committee that the bikeway "was not a trial project, but that after its installation it would be monitored with adjustments made as deemed appropriate.':" According to DOT, the bikeway "is not (and has never been)
identified as a 'pilot' or 'trial' project" by DOT.16
See Brooklyn CB 6 General Board Meeting, Apr. 14, 2010, at 2-3, annexed to the
Affirmation of Jim Walden as Ex. 22.
See Affidavit of
Joshua Benson, ~ 21.
=t«. ft 22.
2011/5210 DecIsion and order dated 8/15/11 (Page 10 of
June-July 2010: In June 2010, DOT constructed the bikeway." According to the
Commissioner, the bikeway was substantially comp leted by July 1) 2010.18 Earlier on June 7, 2010, petitioners separately e-mailed the Commissioaer with their complaints about the bikeway. 19 September-October 2010: By letter dated September 15, 2010, CB-6 expressed to DOT its concerns about the bikeway as constructed." On October 19,2010, DOT presented
CB-6 a before-and-after update of the allegedly positive results of the bikeway on the On October 22,2010, DOT indicated that it would report to CB-6 in early (1) vehicle and bicycle volumes,
2011 with the information on the following issues:
(2) speeding frequency, (3) frequency of illegal cycling behavior, and (4) crash injury rates
of vehicle occupants, pedestrians, and cyclists." By October 8, 2010, DOT made certain enhancements to the bikeway by installing flexible bollards at pedestrian islands, painting
Id., 11 23.
lH. See Aug. 13, 2010 letter from the Commissioner to Assembly Member Brennan and Council Member Lander (Affidavit of Brad Lander, Ex. 5). 19. See 20. 21. 22.
Answer, Ex. M.
See Sept 15,2010 letter from CB-6 to DOT (Affidavit of Richard Bashner, Ex. Q). See Oct. 19,2010 presentation by DOT to CB-6 (Answer, Ex. N). See Oct. 22, 2010 letter from DOT to CB-6 (Richard Bashner Aff., Ex. R). 10
white striping for loading zones, adding loading zones in two locations, and designating a no-standing zone in one location." November 17. 2010: The Commissioner responded to an earl ier e-mail from petitioner NBBL, noting that: "DOT has collected baseline data on vehicle and bicycle volumes, vehicle speeds, crashes and injuries. We are monitoring these criteria for six months following project completion ... The findings from the monitoring period will be presented at a public forum early next year, at which time we encourage you and other members ofthe public to provide additional input.'?' December 2010: On December 9,2010, New York City Council's Committee on Transportation held a five-hour hearing to discuss "Bicycling in New York City Opportunities and Challenges.t'" The Commissioner specifically testified (at page 66) that DOT does not construct "temporary" bikeways as a matter of practice. Separately, the
Borough President testified about his views concerning the bikeway on Prospect Park West. While the Borough President criticized the bikeway's configuration," he never stated that
See Affidavit of Joshua Benson, ~ 25.
24. See letter dated Nov. 17,2010 from DOT to NBBL, at 5, annexed to the Affirmation of Jim Walden, Ex. 20. NBBL's original e-mail to DOT. dated Oct. 18, 2010, is annexed to the Affirmation of Jim Walden, Ex. 26.
See Affirmation of Jim
Walden, Ex. 3.
26. See Transcript of Testimony of Borough President at 148 (HI've been very vocal in my opposition to the drastic changes made to Prospect Park West to accommodate a two-way bike lane. Had DOT installed a traditional bike lane, I would have supported it enthusiastically:') and at 158 (continued...)
its construction was a pilot or temporary project. Thereafter, by letter dated December 30, 2010, petitioner NBBL requested that DOT provide an immediate release of data and a public forum to address the alleged safety problems with the bikeway." January 2011: On January 20, 2011, DOT presented to the CB-6 Transportation Committee the results of its six-month implementation study of the bikeway, and on January 27,2011, DOT released the supporting data to CB_6.28 According to DOT, the bikeway was (and still is) a "resounding success." In particular, DOT emphasized that in the six-month June-December 2010 implementation period, there were no reported pedestrian injuries, and that the NYPD reported no pedestrian pedestrian-bicyclist or cyclist injuries from the
only crashes. Nevertheless, DOT indicated that, in response to the
community input, it would further enhance the bikeway by: (1) installing raised tinted landscaped pedestrian islands, (2) painting rumble strip bicycle markings at intersections, (3) narrowing the buffer between Union Street and' Montgomery Place, and
(4) consolidating the loading zone to south of 9th Street and installing stanchions to prevent
continued) ("my personal objective is to remove these two-way bike lanes and to install a traditional bike lane on Prospect Park West"), annexed to the Affirmation of Jim Walden, Ex. 3.
26. ( ... 21.
Annexed to the Affirmationof Jim Walden as Ex. 30.
28. See Jan. 20,2011 Presentation byDOTtoCB-6 Summary & Raw Data by DOT (Answer, Ex. D).
(Answer, Ex. P); January2011 Evaluation
2011/S21() oectsion aod order dated 8/15/11 (Page t3 of
29)r---------------------------The minutes of the CB-6
vehicle access to the 9th Street entrance to Prospect Park."
Transportation Committee meeting of January 20, 2011 reflect the following pertinent colloquy with DOT regarding the bikeway: "Q - Is DOT working on a timeline to make the bike lanes permanent? A ~ The project was done at the request of the community. Adjustments will be made as needed and in response to community input.
Is this bikeway permanent? Wasn't it presented as an 'experiment'? Community Board made the request for the bike lanes. DOT's mandate is to promote safety and efficiency. DOT designed the plan, evaluated and monitored it after construction. The project is a success based on the standards established for it, therefore no plans to change it other than adjustments presented.
Why was the community led to believe this was a 'pilot' project?
DOT has communicated the purposes of this project very clearly via a public process and has implemented the project in accordance with their standards. If this was an experiment, what are DOT's conclusions? The project is working well, requires some adjustments,':"
In addition to the minutes of the January 20, 2011 presentation, petitioners' counsel Jim Walden affirms that he personally attended this presentation, that during this presentation, a DOT employee stated that DOT "was organizing" the data to be "more helpful," but that
29. See 30.
Jan. 20, 2011 Presentation by DOT to CB-6, "Response to Community Input" slides.
See Exhibit 10 to the Affidavit of Brad Lander.
2011/5210 Deds!on and order dated 6/15/11 (pa,je 14
when this DOT employee was asked whether the bikeway was going to be permanent, this individual "evaded directly answering the question.
March 7, 2011; Petitioners commenced the instant article 78 proceeding challenging the propriety of the construction and its implementation of the bikeway. The petition is supported by an affidavit of their expert challenging the accuracy and sufficiency of DOT's January 2011 implementation study.
Based on the underlying article 78 petition and answer, the court may decide the issues rai sed on the papers presented and grant judgment to the prevai ling party, unless there is an issue of fact requiring a trial (see CPLR 7804 [h]). The first, and foremost, issue presented in this case is a matter oflaw - the applicability of the statute of limitations. To determine when the statute of limitations is triggered in an article 78 proceeding, the court must first ascertain what administrative action petitioners seek to review (see Matter of Young v Board a/Trustees of Vil. a/Blasdell, 89 NY2d 846, 848 [1996]). Here, petitioners allege in their first cause of action that respondents'
conduct in constructing and
the bikeway was arbitrary/irrational and that their decision should be
annulled because DOT falsely labeled this project as "trial" when, in fact, its decision had a "predetermined outcome." Petitioners further allege that DOT failed to: (1) collect
sufficient pre-construction data to adequately analyze the appropriateness of a bikeway on
,I. See Affirmation
of Jim Walden in Support of Amended Petition, ~ 3. 14
Decision andorder 8/1S/11 dated (Page 150f29)r-----------------------------
Prospect Park West, (2) consider the community concerns before construction, (3) adhere to its own standards in analyzing the appropriateness of the bikeway, and (4) consider alternatives to the bikeway (see Amended Petition, ~~ 151.157). As the aforementioned allegations make it clear, petitioners essentially are challenging the propriety of DOT's documented and effectuated determination to construct the bikeway in June-July 2010. Since the original petition was filed in March 2011, or more than four months after the bikeway's construction, the bikeway claim is untimely (see Agoglia, 84 AD3d at 1075; Douglaston & Little, 145 AD2d at 481), To expand upon this issue: once the bikeway's construction was completed in JuneJuly 2010, DOT's determination to construct it became final and binding on petitioners. First, it cannot be disputed that the bikeway had an impact on petitioners who obviously were aware of it, as evidenced by their complaints to DOT,32 Second, petitioners were on notice that DOT had no intention of removing the bikeway, since DOT was merely enhancing it following its construction in June-July 2010. Third, DOT never stated to CB-6 that it would remove the bikeway should its January 2011 implementation results prove to
be adverse to the community.
Lastly, if, as petitioners allege (in'
153), DOT's plan to
construct the bikeway had a "predetermined outcome," then DOT never had any intention of removing the bikeway, regardless of the outcome of its implementation study. Thus, the
The record before the court includes three e-mails, two e-mails dated JIDle7, 2010 and one e-mail dated October 18,20 I0, in which petitioners objected to the bikeway. See Answer to Amended Petition, Ex. M; Affirmation of Jim Walden, Ex. 26.
2011/5210 Dedsion aod order dated 8/15{11 (Page 16 Of 29)
statute of limitations began to run in June-July 2010, at the latest, when the actual onsite construction began and was completed. The statute of limitations expired, at the latest, in November 2010, at which point no further event needed to take place in order for petitioners to claim to be aggrieved by the bikeway's presence. In opposition, petitioners assert that their original petition is timely based on the following two-step sequence. Their first step in reaching this conclusion is their assertion that the bikeway has always been a pilot or trial project that may (but need not) become permanent in its implementation phase. In support, they rely on the affidavit of the Borough President averring (in ~~ 4,6-7) that on March 1,2010 (three months before the bikeway's construction), the Commissioner told him that the bikeway would be constructed on a trial basis, that any decision to finalize the bikeway would be based on the data collected during its implementation phase, and that she believed the bikeway would prove to be a success, but, if not, DOT would modify or remove it. Petitioners' second step is their assertion that DOT's data, when released in January 2011, proved that the bikeway was a failure in its implementation phase." Based on these premises (the trial construction of the bikeway and
its adverse
implementation results), petitioners contend that the four-month limitations period
began to run in January 2011 when the bikeway's "trial" period ended, since its implementation demonstrated that its harm outweighed its utility.
See the affidavit of petitioners' accounting and financial expert Eric Fox.
2011/5210 andrder 8/15/11 17 Decision dated o (Page of29ll~----------------------------
Even if this conclusion followed from its premises, it would not make petitioners' bikeway claim timely in this proceeding. The administrative decision under review in this proceeding is DOT's documented determination to construct, and its actual construction of, the bikeway in June-July 2010. This determination and its actual construction indisputably occurred outside the limitations period." This proceeding is not about DOT's purported determination not to remove the bikeway during its implementation phase, since
petitioners do not allege - and the record fails to indicate - that following the release of the implementation study by DOT in January 20 11 but before petitioners' commencement of this proceeding in March 2011: (1) they made a demand on DOT to remove the bikeway based on their interpretation of the January 2011 implementation study, and (2) DOT determined not to remove the bikeway. Stated differently, there were two discrete events that occurred at definite certain times: (I) DOT's documented and effectuated determination to construct the bikeway in June-July 20 10, and (2) DOT's purported determination not to remove the bikeway notwithstanding petitioners' interpretation of the January 2011 implementation data. With respect to the first temporal event (DOT's initial decision to construct and its
actual construction of the bikeway), petitioners are out of time. With respect to the second
temporal event (the January 2011 implementation results and their interpretation by
petitioners), petitioners would not be out of time; however, at this juncture, there is nothing
for the court to review because petitioners made no pre-commencernent demand on DOT
34. Petitioners in effect so concede when they allege (in 194 of the Amended Petition) that the bikeway was "substantially constructed" two months before August 13, 2010.
Decision and order dated 8/15/11
(Page 18 of
based on their interpretation of the January 2011 implementation data and, therefore, DOT could make no separate, independent determination not to remove the bikeway in the implementation phase based on petitioners interpretation of the January 2011 data. In other
words, petitioners have failed to exhaust their administrative remedies - before attempting to invoke this court's jurisdiction - by confronting DOT with their interpretation of the January 2011 data and by obtaining DOT's separate and independent determination not to remove the bikeway during its implementation phase notwithstanding petitioners'
interpretation of such data." Petitioners' challenge to the accuracy of DOT's January 201 I implementation data should have been provided to DOT before this proceeding was commenced, rather than brought up for the first time in this proceeding. This preexisting failure of petitioners to establish the administrative record with respect to the bikeway's implementation has enabled DOT to expand the length of the implementation period and to include as part of its answer an additional (now a nine-month cumulative) implementation study of bikeway's alleged success, white petitioners in their reply papers are now challenging the accuracy of this additional study. Conversely, if petitioners had exhausted their administrative
with respect to the bikeway's implementation
15. To the extent petitioners' first cause of action could be interpreted as seeking mandamus to compel DOT to remove the bikeway, the same is dismissed, since mandamus to compel "does not lie to enforce the performance of a duty that is discretionary, as opposed to ministerial" (Agog/ia, 84 AD3d at 1076 [internal quotation marks omittedj). Although mandamus to review DOT's decision not to remove the bikeway could be available in theory, the same is not available in this proceeding for the reasons stated above.
Dedslon and order dated 8/15/11 (Page 19 of
commencing this proceeding, the court could have made a concrete assessment of the bikeway's implementation and would not have faced a moving target. Two additional points deserve mention. First, even assuming that after constructing the bikeway, DOT could have reconsidered its determination and removed or modified the bikeway in the implementation phase, DOT's authority to reconsider does not extend the
of limitations with regard to its initial determination
that was
otherwise final and
binding (see Wechsler v State, 284 AD2d 707, 709 [3d Dept 200 1], lv denied 97 NY2d 607 (2001]). In this regard, the court notes that petitioners have presented no evidence that DOT viewed the bikeway as a pilot or temporary project. Indeed, this could not have been the case if the then-enacted and unenacted legislative plans were considered as evidence of
the City policy. Introduction 1063, enacted as Local Law § 90/2009 on December 28, 2009
and effective April 27, 2010, established procedures for DOT to follow in notifying the community of any proposed "major transportation project," which included the thenproposed bikeway." Yet, a companion bill Introduction 1077, which would have required DOT to provide notification in advance of "pilot projects," was put on hold in the City
Council on December 31, 2009 and was never enacted.
important, the DOT
representatives consistently aver that the bikeway was not a temporary project. A DOT
36. See New York City Administrative Code § 19-101.2 (a) (2) (defining a "major transportation project" as "any project that, after construction will alter four or more consecutive blocks, or 1,000 consecutive feet of street, whichever is less, involving a major realignment of the roadway, including either removal of a vehicular lanels] or full time removal of a parking lanels]
or addition of vehicular travellane[s r).
2011/5210 and dated 8/15/11 20 DecisIon order (Page Of29)~-~--------------------------
representative (Joshua Benson) states in his affidavit that he specifically advised the CB-6 Transportation Committee at his Apri129~ 2010 presentation that the bikeway "was not a trial project, but that after its installation it would be monitored with adjustments made as deemed appropriate.
Additionally, the Commissioner states in her affidavit, as well as in
her December 9,2010 testimony before City Council's Committee on Transportation, that DOT did not construct any temporary bikeways as a matter of practice.
By contrast,
petitioners point to no relevant evidence suggesting that the bikeway was temporary. They purport to create an issue of fact by citing the affidavit of the Borough President where he averred that, on March 1,2010, the Commissioner told him that the bikeway "would be implemented on a trial basis" (~6). However, the Borough President's conclusory affidavit is devoid of detail and fails to raise a genuine issue of material fact. Moreover, the Borough President never mentioned in his December 9, 2010 testimony before the City Council's Committee on Transportation that DOT had characterized the bikeway as temporary." The other point worthy of mention is the general rule that where "the claim is that a public official has failed to perform a continuing statutory duty," the right to reliefwill not
be barred by the
four-month statute of limitations (see Matter of Janke v Community School
See Affidavit
of Joshua Benson, ~ 21.
38. In his testimony, he expressed his "opinion" (at pages 150·151) that DOT used the community's request to improve safety and slow down traffic to turn Prospect Park West into an "experiment" to fit its current ideology. Even if his use of the word «experiment" could be interpreted to mean that the bikeway was "experimental" and/or temporary, his statement expressly qualified it as his "opinion," and not what DOT told him.
Dedslon and order dated 8/15/11 (Page 21 0( 29)
Ed. of Commun ity School
tn« No.
19, 186AD2d 190,193 [2dDept 1992]). Here.however,
petitioners do not allege that DOT has failed to comply with any continuing statutory duty. To the contrary, petitioners contend that DOT has failed to live by its alleged promise, made some time before June-July 20 I0, to construct the bikeway on a temporary basis. Accordingly, petitioners' first cause of action is dismissed. Petitioners' second, third, and fourth causes of action for failing to comply with SEQRA and CEQR, as well as for failing to refer the matter to LPC, at or before the bikeway's construction in June-July 20 10, are dismissed on the statute of limitations grounds (see Matter of Villella v Department of Transp. of State of New York, 142 AD2d 46,48 [3d Dept 1988], lv denied 74 NY2d 602 [1989]; Lai Chun Chan lin v Board of Estimate of City of New York, 101 AD2d 97, 99 [1&t
Dept 1984J, appeal dismissed 63 NY2d 675 [1984]).
The FOIL Claim Petitioners, in their fifth and final cause of action, allege (in ~ 179) that respondents have failed to produce documents in their possession that are responsive to the FOIL request, that are "public records" within the meaning of FOIL, and that do not fall within
any of the exemptions to FOIL. Respondents deny this allegation, asserting (in' 143) that
they have fully complied with all FOIL requirements in responding to the FOIL request."
There is a potential procedural impropriety on the part of petitioners which the court will
overlook because it has been waived by respondents. Petitioners use the plural "petitioners" instead of the singular "petitioner" as the entities that made the FOIL request (see Amended Petition, ~ 179). Actually, only petitioner NBBL made the FOIL request. Yet}the amended petition which assertsthe FOIL cause of action - the original petition did not assert it - is verified by the other petitioner, Lois
(continued ...)
2011/5210 DecIsion and order dated 8/15/11 (Page 22 of 29i-~-"
To give some background, petitioner ~13BL, by letter dated November 12, 2010, sought from DOT 23 categories of documents relating to the bikeway." By letter dated
January 27,2011, DOT advised NBBL that: (1) its FOIL request was granted in part and denied in part, (2) there were no responsive documents in 4 of the 23 categories, and
(3) some of the responsive documents were redacted or withheld on the grounds of statutory
exemptions. Thereafter, NBBL, by letter dated February 25,2011, appealed. DOT's partial denial of its request. By letter dated March 14,2011, DOT advised NBBl that its appeal was granted in part and denied in part, provided additional responsive documents, and further indicated that some of the responsive documents were redacted or withheld on the
grounds of one or more of the following statutory exemptions:
personal privacy
(§ 89 [2] [bJ) as well as inter-agency or intra-agency materials (§ 87 [2) [gJ).
Thereafter, petitioners, by letter dated March 17, 2011, made a FOIL request on the office of the City Council with respect to the bikeway. By letter dated March 25, 2011, the office of the City Council acknowledged receipt of this request, indicating that "[d]ue to the
continued) Carswell, President of petitioner SFS, which did not make the FOIL request Because CPLR 7804 (d) requires a petition to be verified, the amended petition, in effect, is not verified as to the FOIL request. Pursuant to CPLR 3022, "[w[here a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice with due diligence to the attorney of'the adverse party that he elects so to do." Since respondents provided no such notice or even raised this potential defect, the same has been waived by respondents (see Matter of Engels v Town of Parishville, 2011 WL 3190270, * 1, 2011 NY Slip Op 06063 [3d Dept 2011)).
39. ( ...
See Affirmation of Jim Walden, Ex. 29. The Fo.IL request, totaling 23 categories, consisted of 5 categories of documents (designated as "a" through "e") in request No.1, plus I category of documents in each of requests No. 2-19.
201115210 order dated 8115111f 29):----------------------------DecIsion and (Page 23 o
nature of your request we expect to provide you with a response within
90 business days." The record is unclear regarding whether petitioners have received to date any responsive documents from the office of the City Council.
Petitioner NBBL asserts that DOT's document production in response to its FOIL request was "woefully inadequate." In particular, NBBL alleges that DOT has failed to produce the following categories of documents:
on the emergency vehicle response time, before and after the bikeway's construction (, 109);
Any studies conducted by DOT before constructing the bikeway (~ 113); Any study-design plans for the study of the bikeway which DOT "promised, including the standardized statistical procedures it intended to follow" (~ 113); The methodology that DOT used to study the effect of the bikeway on motor vehicle speeds (1 113); The complete correspondence between DOT officials and bikeway advocates
(1 114)j
(4) (5)
Documents and e-mails from the Commissioner of DOT Policy Jon Orcutt concerning the bikeway (~ 114); The complete correspondence between DOT and the third-party consultant it hired to conduct studies of travel times and bicycle volumes after the construction of the bikeway (~ 115); and Documents further illuminating DOT's role in collecting, analyzing, or selecting the data on which it relied and disclosed to the public (~ 116).
2011/5210 Oedslon and order dated 8/15/11 (Page 24 of 29)
In opposition, DOT asserts generally that it has produced more than 3,000 pages of
responsive documents.
When it comes to particulars,
however, DOT treats the
aforementioned categories of documents in significantly less detail than they deserve and addresses only the first two of the aforementioned categories. As to the first category (the emergency vehicle response times), DOT asserts, by counsel, that the January 2011 data on traffic volumes before and after the bikeway construction, as well as the data on the time it took to travel on Prospect Park West, were responsive to this request, since "[tjhese both have an effect on the ability of emergency and non-emergency vehicles to traverse the [Prospect Park West] corridor.?" DOT's response makes no sense, however. The speed of emergency and non-emergency vehicles cannot be the same, since emergency vehicles, when involved in an emergency operation, are permitted to disregard traffic rules." Ambulances, in particular, may in the event of an emergency use the bikeway, since it is wide enough for them to pass." As to the second category (the pre-construction studies), DOT asserts, again by counsel, that the January 2011 data are responsi ve because they list the types of information that DOT collected before constructing the bikeway. DOT avers that to the extent NBBL
See Respondents' Memorandum of Law in Opposition, at 36. See Vehicle & Traffic Law §§ 1104 (a) and (b). See Vehicle & Traffic Law § 1104 (f).
20ll/S210 Dedslon and ordetdated
8/15111 25 29)"----------------------------(Page
seeks a formal pre-construction engineering study, no such study had been performed." Again, DOT's response is inadequate: if DOT conducted no study before constructing the bikeway, its records access officer should so state without leaving NBBL to reason or guess and conjecture. Accordingly, the court finds that DOT has failed to respond fully and
adequately to NBBUs FOIL request.
NBBL further contends that DOT has failed to identify with any particularity the records to which the statutory exemptions from disclosure allegedly applied. According to NBBL, it is unable to evaluate the legitimacy of DOT's invocation of the statutory exemptions (Amended Petition, 1110). In opposition, DOT asserts that it has invoked only
statutory exemptions: personal privacy (§ 89 [2] [b)), and inter-agency or intra-agency
materials (§ 87 [2] [gD. To illustrate the applicability of these exemptions, DOT offers, by
an affidavit of its records access officer, an example of a redacted document for each of the
DOT concludes that its level of detail is sufficient and that it is not
required to itemize or identify each document that it withheld in whole or in part. Freedom of Information Law provides that all records of a public agency are presumptively open to public inspection and copying, irrespective of the status or need of the person making the request, unless otherwise specifically exempted (see Public Officers See Affidavit of Joshua Benson, at 8, n 13, stating that no "formal engineering study See Affidavit of Penny Jackson, ml8-9; Answer, 25
document" was prepared for the bikeway.
BE and FF.
2011/5210 Dedslonaod order dated 8/15/11 (Page 2601
Law § 87 [2]; Matter of Farbman & Sons v New York City Health & Hospitals Corp., 62 NY2d 75, 80 (1984]). "Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a
particularized and specific justification for denying access" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 [1986]). While an agency should be accorded an opportunity to prove by means other than an in camera inspection that it is entitled to an exemption, if it fails to provide such detailed information, an inspection of such documents may be performed by the court (see Matter of Miller v New York State Dept. of
Transp., 58 AD3d 981, 983 [3d Dept 2009], lv denied 12 NY3d 712 [2009]), or by a referee
as necessary (see Matter of New York Civil Liberties Union v City of Schenectady, 2 NY3d 657,661 [2004]). Accordingly, NBBL's fifth cause of action is granted, and DOT is directed to provide responsive documents; to the extent that they exist," in accordance with FOIL. In the alternative, DOT is directed to provide a detailed exemption log explaining why the responsive documents have either been redacted or withheld, subject to an in camera review by this court. In any event, NBBL needs to review its original FOIL request so as to avoid duplication with the information already obtained from other sources, including any
46. To the extent that DOT certifies that after a diligent search, no documents responsive to a particular request ofNBBL were in its possession, DOT satisfies its FOIL obligations with respect
to such request (see Matter oj Livingston v Hynes, 72 AD3d 968 {2d Dept 20 i0]).
and order dated 6/15/11 (Page 27 of 29)
documents obtained from the City Council under FOIL (see Cornex, Inc. v Carisbrook Indus; Inc., 161 AD2d 376,377 [lst Dept 1990]).
Under the circumstances, including that the court has dismissed the portion of the amended petition which asserts the bikeway claim and that petitioners already have sought extensive disclosure through FOIL, petitioners' amended discoveryrnotion is denied as moot.
The parties' remaining contentions have been considered and found to be either moot
or without merit. Conclusion Based upon the foregoing, it is ORDERED that petitioners' original petition, dated March 7,2011 (sequence No.1), is hereby dismissed as moot, having been superseded by amended petition, dated April 8~
2011 (sequence No.3); and it is further
ORDERED that petitioners' (sequence No.2),
original discovery motion, dated March 7, 2011
is hereby dismissed as moot, having been superseded by amended
discovery motion, dated April 8, 2011 (sequence No.4); and it is further
ORDERED that petitioners' amended petition, dated AprilS, 2011 (sequence No.3), is hereby determined, as follows:
1. The Bikeway Claim: Petitioners' first through fourth causes of action in the
amended petition are hereby dismissed without prejudice; and
TheFOIL Claim: Petitioners' remaining fifth cause of action in the amended
petition is hereby denied as to petitioner SFS, and is hereby granted as to petitioner NBBL to the extent that DOT is directed to provide to NBBL responsive documents, to the extent that they exist, in accordance with FOIL Alternatively, DOT shall provide to NBBL a detailed exemption log explaining why the responsive documents have either been redacted or withheld, subject to an in camera review by this court. In any event, NBBL is hereby directed to review its original FOIL request so as to avoid duplication with the information already obtained from other sources, including any documents obtained from the New York City Council under FOIL; and it is further
ORDERED that petitioners' amended discovery motion, dated April 8, 2011 (sequence No.4), is hereby denied as moot; and it is further ORDERED that respondents' counsel is directed, within 14 days after entry of this decision and order, to serve upon petitioners) counsel a copy of same with notice of entry pursuant to CPLR 2103 (b) and 5513 (a), and to file proof of service thereof with the
clerk's office.
The foregoing constitutes the decision and order of the court. EN T E R FOR T R'ty I fi-I
Decision and order dated 8/15/11 (Page 29 of
.'r.. ;;"S
..~ ~
JIoi. , '.
See § 670.3
~upr£m£ <!laud rrf t4£ ~hd£ af ~ cfn 1iark ~i&i$ian : ~£cana 3}uaix::ial ~£partnt£nt
of the rules of this court for directions on the use of this form (22 NYCRR 670.3).
Form A - Request for Appellate Division Intervention - Civil
Case Title: Set forth the title of the case as it appears on the summons, notice. of petition or order to show cause by which the matter was or is to be commenced. or as amended. In the Matter of the Application of, SENIORS FOR SAFETY, an unincorporated association, by and in the name of its President, Lois Carswell, and NEIGHBORS FOR BETTER BIKE LANES, an unincorporated association, by and in the name of its President, Louise Hainline, Petitioners, For Judgment Pursuant to CPLR Article 78 - againstNEW YORK CITY DEPARTMENT OF TRANSPORTATION, and JANETTE SADIK-KHAN, COMMISSIONER OF TRANSPORT A TION, in her official capacity,
!Xl CPLR article 78 Proceeding
o Special
o Transferred o CPLR 5704
Proceeding Review
02 03 04 05 iXl6
Human Rights Licenses Public Employment Social Services Other
02 03 04 05 Children Children Children al Rights 06 07 Children Children Equitable Exclusive Residence 010 011 012 Expert's Fees - Abuse/Neglect - JD/PINS Distribution Occupancy of 02 D3 Xl4 U5 U6 D7 D8 :J9 Determine Easements Environmental Liens Mortgages Partition Rent Taxation 08 D9 010 011 012 013 014 Title 06 D7 - Support - Custody/Visitation - Terminate ParentConversion Defamation Fraud Intentional Emotional Interference Malicious Abuse Infliction Distress with Contract Prosecution/ of
01 02 03 04 05
Partnership/Joint Business Religious Not-far-Profit Other
of Process
Malpractice Negligence Nuisance Products Strict Liability
Maintenance/Alimony Marital Paternity Status
01 02 03 04 05
Brokerage Commercial Construction Employment Insurance Real Property Sales Secured Other 01 02 03 CJ4 D5 06 Paper
Spousal Support Other
CJ 10 Zoning CJ 11 Other
Trespass Other
and/or Waste
Constructive Debtor
City of Mount Charter 129 02 Eminent
Vernon 127-f, or 02 03 Discovery Probate/Adm Trusts Other inistration
07 08
& Creditor Judgment
§ § 120,
Declaratory Election Law
04 05
Notice of Claim Other CJ3
ure Law § 207 General Municipal § 712 04 05 Labor Law § 220 Public Service or 170 06 Other Law § § 128 Law
Form A - RADI - Civil
Paper Appealed
From (check one only): U Determination 0 Finding 0 Interlocutory Decree 0 Interlocutory Judgment 0 Judgment 0 Order U Order & Judgment 0 Partial Decree 0 Resettled Decree U Resettled Judgment County: Kings Entered: August 16,2011 Index No.: 5210111 U Resettled Order
0 Amended Decree 0 Amended Judgment 0 Amended Order :xl Decision
Ruling Other (specify):
0 Decree
Court: Supreme Court Dated: August 15,2011
Judge (name in full): Bert A. Bunyan Stage:
0 Interlocutory
0 Yes
I.Xl No
If Yes: 0 Jury
0 Non-Jury
Are any unperfected covered Nurnberls)
appeals pending in this case? notice of appeal with appeals:
0 Yes
If yes, do you intend to perfect
the appeal or appeals Division Cause
by the annexed
the prior appeals?
0 Yes
0 No.
Set forth the Appellate
of any prior, pending, unperfected
Judge (name in full):
Order of Transfer
CPlR 5704 Review of Ex Parte Order
Court: Judge (name in full): County: Dated:
Description: and whether : CPLR 7804(g), the motion
of Appeal.
or denied.
Proceeding or Application
If an original proceeding
and Statement
of Issues
pursuant to
If an appeal, briefly describe the paper appealed from. was granted briefly describe the object of the proceeding.
If the appeal is from an order, specify the relief requested commenced in this court or transferred under CPLR 5704, briefly describe the nature of
If an application
: the ex parte order to be reviewed. This is an appeal from a judgment denominated a "Decision and Order," dated August 15, 2011, disposing of Petitioners' Amended Article 78 Petition, which pertains to the New York City Department of Transportation's ("DOT") decision to install a bike lane on Prospect Park West. The trial court dismissed certain of Petitioners' claims as time-barred under the statute of limitations and, in light of that dismissal, denied Petitioners' amended motion for expedited discovery as moot. The trial court also granted Petitioners' claim under the Freedom of Information Law, which Petitioners do not appeal.
Amount: Issues:
If an appeal is from a money judgment, Specify
specify the amount awarded. or application for CPLR 5704 review.
the issues proposed to be raised on the appeal, proceeding,
The issues proposed to be raised on the appeal include whether the trial court erred in holding that DOT's decision to install the Prospect Park West bike lane was final and binding in June 2010 and in dismissing certain of Petitioners' claims as time-barred under the statute of limitations. This appeal also challenges the trial court's decision denying Petitioners' amended motion for expedited discovery as moot. Given that the trial court erred in dismissing Petitioners' claims related to the installation of the Prospect Park West bike lane as time-barred, its denial of Petitioners' amended motion for expedited discovery was similarly erroneous.
* "Decision and Order," dated August 15,2011, which constitutes a final disposition and judgment appealable as of right.
Issues Continued:
Party Information
Instructions: Fill in the name of each party name per line. If this form is to be filed for an party in the court of original instance and his. any. If this form is to be filed for a proceeding only the party's name and his, her, or its status to the action or proceeding, one appeal, indicate the status of the her. or its status in this court, if commenced in this court, fill in in this court. Examples of a party's original status include: plaintiff, defendant, third-party petitioner respondent. claimant. defendant plaintiff, third-party defendant, and intervenor. Examples of a party's Appellate Division status appellant, include: respondent, appellant-respondent. respondent-appellant, petitioner, and intervenor.
Party Name
Neighbors for Better Bike Lanes Petitioner Petitioner of Transportation Respondent Respondent
Original Status
Appellant Appellant Respondent Respondent
Division Status
1 2 3 4 5 6 7
Seniors for Safety New York City Department Janette Sadik-Khan
9 10 11 12
14 15 16 17
19 20
Attorney 'Information
Fill in the names of the attorneys or firms of attorneys for the Instructions: respective parties. If this form is to be filed with the notice of petition or order to show cause by which a special proceeding is to be commenced in the Appellate Division, only the name of the attorney for the petitioner need~
provided. In the event that a litigant represents herself or himself, the box marked "Pro Se" must be checked and the appropriate information for that IitiganAmust be supplied in the spaces provided.
Na~~~_ Jim Walden, Gibson, Dunn
& Crutcher LLP
;>1~ 1AJ01r1\
Address: 200 Park Avenue, 47th Floor City: New York Attorney Type:
Ii) Retained
Telephone No.: (212) 351-4000
o Assigned
o Government
o Pro Se
o Pro Hac
Party or Parties Represented Attorney/Firm Name:
(set forth party number!s] from table above or from Form C):
Telephone No.: (212) 442-0573
Michael A. Cardozo
Address: Corporation Counsel of the City of New York, 100 Church Street City: New York Attorney Type: -_ ... State: NY Zip: 10007
C Retained
o Assigned
~ Government
o Pro Se
o Pro
Hac Vice
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Investigate circuits and record your findings in this simple introduction to truth tables and logic.
Learn about the link between logical arguments and electronic circuits. Investigate the logical connectives by making and testing your own circuits and record your findings in truth tables.
Problem solving is at the heart of the NRICH site. All the problems
give learners opportunities to learn, develop or use mathematical
concepts and skills. Read here for more information.
Learn about the link between logical arguments and electronic circuits. Investigate the logical connectives by making and testing your own circuits and fill in the blanks in truth tables to record. . . .
Can you visualise whether these nets fold up into 3D shapes? Watch the videos each time to see if you were correct.
In how many distinct ways can six islands be joined by bridges so that each island can be reached from every other island...
Blue Flibbins are so jealous of their red partners that they will
not leave them on their own with any other bue Flibbin. What is the
quickest way of getting the five pairs of Flibbins safely to. . . .
Euler discussed whether or not it was possible to stroll around Koenigsberg crossing each of its seven bridges exactly once. Experiment with different numbers of islands and bridges.
Can you cross each of the seven bridges that join the north and south of the river to the two islands, once and once only, without retracing your steps?
Baker, Cooper, Jones and Smith are four people whose occupations
are teacher, welder, mechanic and programmer, but not necessarily
in that order. What is each person's occupation?
Your partner chooses two beads and places them side by side behind a screen. What is the minimum number of guesses you would need to be sure of guessing the two beads and their positions?
Four jewellers possessing respectively eight rubies, ten saphires,
a hundred pearls and five diamonds, presented, each from his own
stock, one apiece to the rest in token of regard; and they. . . .
A game for 2 players that can be played online. Players take it in turns to select a word from the 9 words given. The aim is to select all the occurrences of the same letter.
Use the numbers in the box below to make the base of a top-heavy
pyramid whose top number is 200.
What is the area of the quadrilateral APOQ? Working on the building
blocks will give you some insights that may help you to work it
Which of these roads will satisfy a Munchkin builder?
You have been given nine weights, one of which is slightly heavier
than the rest. Can you work out which weight is heavier in just two
weighings of the balance?
Three teams have each played two matches. The table gives the total
number points and goals scored for and against each team. Fill in
the table and find the scores in the three matches.
After some matches were played, most of the information in the
table containing the results of the games was accidentally deleted.
What was the score in each match played?
There are four children in a family, two girls, Kate and Sally, and
two boys, Tom and Ben. How old are the children?
Can you discover whether this is a fair game?
In this 7-sandwich: 7 1 3 1 6 4 3 5 7 2 4 6 2 5 there are 7 numbers between the 7s, 6 between the 6s etc. The article shows which values of n can make n-sandwiches and which cannot.
Toni Beardon has chosen this article introducing a rich area for
practical exploration and discovery in 3D geometry
Imagine two identical cylindrical pipes meeting at right angles and think about the shape of the space which belongs to both pipes. Early Chinese mathematicians call this shape the mouhefanggai.
If you take two tests and get a marks out of a maximum b in the first and c marks out of d in the second, does the mediant (a+c)/(b+d)lie between the results for the two tests separately.
ABCD is a square. P is the midpoint of AB and is joined to C. A line from D perpendicular to PC meets the line at the point Q. Prove AQ = AD.
A paradox is a statement that seems to be both untrue and true at the same time. This article looks at a few examples and challenges you to investigate them for yourself.
Consider the equation 1/a + 1/b + 1/c = 1 where a, b and c are
natural numbers and 0 < a < b < c. Prove that there is
only one set of values which satisfy this equation.
The diagram shows a regular pentagon with sides of unit length.
Find all the angles in the diagram. Prove that the quadrilateral
shown in red is a rhombus.
Take any rectangle ABCD such that AB > BC. The point P is on AB
and Q is on CD. Show that there is exactly one position of P and Q
such that APCQ is a rhombus.
A composite number is one that is neither prime nor 1. Show that
10201 is composite in any base.
Patterns that repeat in a line are strangely interesting. How many types are there and how do you tell one type from another?
Can you make sense of the three methods to work out the area of the kite in the square?
Can you convince me of each of the following: If a square number is
multiplied by a square number the product is ALWAYS a square
Some puzzles requiring no knowledge of knot theory, just a careful
inspection of the patterns. A glimpse of the classification of
knots and a little about prime knots, crossing numbers and. . . .
It is impossible to trisect an angle using only ruler and compasses
but it can be done using a carpenter's square.
Caroline and James pick sets of five numbers. Charlie chooses three of them that add together to make a multiple of three. Can they stop him?
Take any prime number greater than 3 , square it and subtract one.
Working on the building blocks will help you to explain what is
special about your results.
The first of two articles on Pythagorean Triples which asks how many right angled triangles can you find with the lengths of each side exactly a whole number measurement. Try it!
The country Sixtania prints postage stamps with only three values 6 lucres, 10 lucres and 15 lucres (where the currency is in lucres).Which values cannot be made up with combinations of these postage. . . .
If you know the sizes of the angles marked with coloured dots in
this diagram which angles can you find by calculation?
Show that if you add 1 to the product of four consecutive numbers
the answer is ALWAYS a perfect square.
Take any two digit number, for example 58. What do you have to do to reverse the order of the digits? Can you find a rule for reversing the order of digits for any two digit number?
Can you fit Ls together to make larger versions of themselves?
This is the second article on right-angled triangles whose edge lengths are whole numbers.
The first of five articles concentrating on whole number dynamics, ideas of general dynamical systems are introduced and seen in concrete cases.
The final of five articles which containe the proof of why the sequence introduced in article IV either reaches the fixed point 0 or the sequence enters a repeating cycle of four values.
Prove Pythagoras' Theorem using enlargements and scale factors.
This article discusses how every Pythagorean triple (a, b, c) can be illustrated by a square and an L shape within another square. You are invited to find some triples for yourself.
Start with any whole number N, write N as a multiple of 10 plus a remainder R and produce a new whole number N'. Repeat. What happens?

subset: commoncrawl


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Photo of the Week: iPhone in Kenya
This week's featured photo is from our iPhones Around the World gallery, and shows an original iPhone near the waters of Funzi Keys in Kenya. To share your photos and to be considered for our Photo of the Week, you simply need to submit your own photo to one of our galleries. So get out there, take some pictures with your iPod or iPhone, and maybe your submission will be our next Photo of the Week!
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- Cool tips for that new iPhone, iPad, Apple Watch, or Apple TV you found under the tree
The apple website has been telling me that iphone is soon coming to Kenya but so there's no one selling iphone in Kenya. I have been waiting for the opportunity to buy one but it doesn't seem to come. Does anyone know where I can get one in Kenya at the recommended retail price of US$300 for the 16GB?
Someone please assist.
Posted by Noel Jilani on August 8, 2008 at 2:47 AM (CDT)
i have been looking for ages for a place to purchase the iphone - 3g in kenya for a while.
why cant you guys make it availabel in most places.
Posted by Abigael on August 14, 2008 at 3:09 AM (CDT)
I need to purchase an iPhone 3GS at a reasonable price here in Kenya
Posted by Eva Macharia on June 3, 2010 at 1:52 AM (CDT)
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text:
Minimally Invasive Spine Surgery
By minimizing tissue trauma during a spinal surgery, patients experience shorter hospital stays, and faster, less painful recovery periods.
Northern Virginia's top-rated brain and spine surgeons
Atlantic Brain & Spine provides comprehensive neurosurgical services for Northern VA and the greater DC area. Our top-rated surgeons are board certified and trained in the latest, cutting edge technology.Play Video
By minimizing tissue trauma during a spinal surgery, patients experience shorter hospital stays, and faster, less painful recovery periods.
Robotic spine surgery allows our surgeons to exercise an incredible level of precision, well beyond standard capabilities.
Motion Preservation Spine Surgery is a surgical technique that allows patients to avoid spinal fusions.
Board Certified Neurological Surgeon
A graduate of both Yale and Stanford, Dr. Jae Y. Lim is a board-certified neurosurgeon who specializes in minimally invasive techniques that significantly reduce surgical impact and recovery times.Learn More
Board Certified Neurological Surgeon
A cum laude graduate of Harvard Medical School, Dr. Ben L. Nguyen is a board certified neurological surgeon specializing in minimally invasive surgical approaches, as well as brain tumors and pituitary diseases.Learn More
The word fusion when it comes to the spine mostly has a negative connotation for patients and referring doctors. What we tell patients about fusion surgeries is that the procedure itself isn't bad, but the results can be bad if it is performed incorrectly, in the wrong patient or at the wrong time. Having said that, we believe in avoiding spinal fusions if at all possible.Read more


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Department: PVH ER Schedule: Full-time Shift: Flex - All Shifts/Combo of Shifts Scheduled Days & Hours: varies Requisition number: 54148 Requisition # 54148
A-TEC Ambulance, Inc. - Waukegan, IL
We're also accepting Paramedic applications for our other locations: We're also accepting applications for an EMT-B role in our other office locations -
Emergency Medical Technician Basic - EMT-B
LifeCare Medical Transports, Inc. - Fredericksburg, VA
Attending training sessions and orientations as required to maintain valid Virginia EMT Certification and requirements of the Company....
AMR EMT-B - Indianapolis
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AMR EMT-Bs assess each situation using critical thinking skills and provide care for the sick or injured in emergency and non-emergency settings. People's
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The EMT & Paramedic job function is to transport sick and injured persons by ambulance in a manner conducive to their safety and comfort and to administer Basic...
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The basic function of the EMT is to provide medical care and transportation for a patient at the Emergency Medical Technician (EMT-B) level, within their scope...
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Whether you have years of experience, or just graduated from EMT school, you will find the training and tools that you need to be successful from the very start...
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If you are certified by the State of Ohio to practice as a Paramedic, or an EMT, and you are interested in utilizing your skills in a diversified Ambulance...
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CHI St. Joseph Health - Bryan, TX
JOB SUMMARY Provides professional patient care and transportation in accordance with all departmental and St. Joseph Health System operating policies, city


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Boom! A YouTube video for a change – bet you didn't expect that! Regular readers will recall I've written about epilators before and so I thought for a change, it would be nice to actually speak about it. It's Braun's Silk-épil 7: SkinSpa – Epilation & Sonic Exfoliation System – the latest model from Braun's extensive range of epilators and it's a big one.
Oh, I made a teeny-weeny boo-boo in my video so please ignore it – there are at least five different Wet & Dry epilators by Braun on the market differing in prices and functions and I was merely referring to my previous Braun Wet & Dry epilator. Phew! Glad we got that bit out of the way…I know how some people can worked up on YouTube…)
I hope you enjoy it. Let me know what you think and if you do subscribe to my channel, then bless you.
*PR sample
Tags: Braun, Braun Silk-épil 7: SkinSpa - Epilation & Sonic Exfoliation System, epilation, epilator
If you caught my recent post about laser hair removal…
Would you trust a flannel to remove your make-up? What…
Hair removal is such a pain – in more ways…
Great information! It's good to see you in a video 🙂
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This site is using WP Check Spammers from Xavier Media to filter out spam comments.


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Man impersonates officer to try and get discount on donutsSarasota News
Nov. 18, 2013
WATCH: Sudanese Muslim Refugee Shot After Beating Woman, Cop With Stick -- Media Ignores
WATCH: The Truth About the Syrian Boy Viral Photo
UPI Poll: Trump and Clinton Virtually Tied
Joe Biden: Whites Becoming a Minority in America is a "Source of Our Strength"
Taiwan: Rare Pokemon Triggers Stampede in Taipei
TRINITY, FL. - Pasco County Sheriff Deputies arrest a man after he tried to get a discount on donuts by impersonating a law enforcement officer.
Read More


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Top Definition
Russian slang for someone in between a newbie and novice. Also a common synonym for moron often followed by a handpalm.
He's such a chainik.
av theRussian10 14. mars 2009
Trending Now
Can you define these popular missing words?
Alle eposter sendes fra email@example.com. Vi lover å ikke spamme.×


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These cascades on Little Buffalo Creek drop into a deep pool.
503 views at February 8, 2014.
Mount Buffalo National Park, Victoria, Australia.
This spot is at the base of Howells falls on Little Buffalo Creek and is difficult to access. The rocks make it hard to scale the image but the drop here is probably about 4 metres.


text:
Relevant offers
Food & Wine
Parmesan, gouda and chevre. Gruyere, cheddar and stilton. Roquefort, ricotta, camembert, provolone. Velvety paneer. Crumbly feta. Buttery emmenthal. A yielding, musty brie. Who'd have thought a lump of coagulated milk fat could be so delicious, in such a marvellous multiplicity of ways?
OPINION: Cheese is my favourite food in the world. No matter what the question, it's entirely possible that a tasty morsel of cheese is the answer, though cheese raises a few new questions of its own.
For example, why isn't more of a fuss made of cheese, given the boundless pleasure it affords the wider community? Why aren't fetching bronze statues erected in public squares throughout the land, immortalising the noble cheesemakers behind such indigenous culinary marvels as Mahoe Farmhouse old edam, Clevedon Valley buffalo mozzarella, Karikaas leyden, Kapiti kikorangi blue or Zany Zeus halloumi?
Where are the enduring representations of dairy products in contemporary literature? As British poet and novelist G K. Chesterton once wrote, "Poets have been mysteriously silent on the subject of cheese." He was dead right; after all, what better subject for poetic reveries than a slice of pear topped with glorious blue-veined Gorgonzola, or a few chalky slivers of aged ewe's milk pecorino scattered with walnuts and drizzled with manuka honey?
At least cheese gets its due in my household. I eat it, cook with it, dream about it, rhapsodise it to the rafters. I said to my daughter the other day that I loved cheese so much, I wanted to marry it. She replied that I was already married to her mother, and besides, "marrying food would be weird."
She's right, of course. But a life without cheese would surely be a wasted life. No man-made food is as emotionally satisfying, as protein-packed, as pungent and toothsome, as historically fascinating and deliciously diverse.
Consequently, it seemed Christmas had come early when I was contacted two weeks ago by Zany Zeus, a family business of Cypriot artisan cheesemakers based in Wellington.
With humble beginnings 12 years ago in a run-down old garage in inner-city Hataitai, the company now has a flash dairy operation in Lower Hutt, supplying stores and restaurants around the country with products made from organic milk and cream.
Astutely discerning from my tubby column pic that I was a man with an affection for cheese, some bright spark from Zany Zeus emailed me, getting straight to the point. Could I write a little something about them if they sent out a gift basket to some lucky reader?
The cheek of it. What an outrageous suggestion! Bugger the readers, I said. Send that cheese to me! Two days later, a chilled polystyrene box arrived by courier and for the past two weeks I have been working my way through a world of cheese.
I can confirm that the Zany Zeus "classic feta" is bracingly briney and perfect for a punchy spanakopita, while their "creamy feta" has the kind of silky mouth-feel I've been craving ever since I was forcibly separated from the maternal breast. There's also a version with added chilli that I used to add a little wallop to a Greek salad.
I almost cried with joy as I stuffed my face with their famous halloumi, a traditional brined cheese garnished with fresh mint leaves and folded back on itself in the Cypriot style. With its faint lemony tang, this can't be beaten raw with slices of fresh watermelon or tomato.
Better still, lightly pan-fry, lay on a slice of crusty sourdough then squeeze over a wedge of lemon. Consume immediately. Die with pleasure. Repeat.
At Zany Zeus, they also like to set fire to things.
Where lesser cheesemakers merely paint on a chemical flavouring, these guys built a smokehouse out the back of their factory where they labour away over smouldering manuka chips to lend an authentically nutty, wood-cured flavour to smoked ricotta, smoked paneer, smoked brinza, and an oddly addictive smoked yoghurt that's superb with a little crashed garlic stirred through it as a sauce for lamb kofta.
When I emailed the company back to say how much I'd enjoyed their generous dairy bribe, they wrote back saying they were still keen to dispatch a wee pre-Christmas gift basket to one lucky reader of this column.
I suggested they just send another one my way, but no; they were adamant the next cheese parcel had to go to a member of the public. So, whoever sends the most entertaining cheese-related poem, anecdote or love letter to my email address over the coming week will get the prize.
- Sunday Star Times
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