Home Second Avenue Subway Residents on 86th file suit over entrances, again

Residents on 86th file suit over entrances, again

by Benjamin Kabak

These proposed entrances for the Second Ave. Subway on 86th St. are the subject of another federal lawsuit.

Since the end of the days of Robert Moses, NIMBYism has become a rallying cry across New York City. Residents use it to block almost any major project while construction proponents point to it as a major cause of a lack of unified planning in New York City. No where is it more evident than in a suit filed this week by residents of the Yorkshire Towers building on the northeast corner at 86th St. and 2nd Ave.

The building is suing a variety of federal agencies as well as MTA, New York City Transit and MTA Capital Construction over what they allege was a faulty environmental impact assessment of the decision to relocate entrances from the corner of 86th St. and 2nd Ave. to mid-block on 86th St. The court filings are extensive. Thanks to Twombly’s heightened pleading standard, the initial complaint reaches 85 pages and is available for those who wish to read it after the jump. Essentially, though, the plaintiffs claim that the MTA’s decision to relocate entrances from the Food Emporium at the corner to a mid-block alternative violates a variety of laws. We’ll return to those claims in a minute.

This isn’t the first time Yorkshire Towers has filed suit over the MTA. In fact, in a related case in late November, they sued the MTA over a FOIL request. In that suit, the plaintiffs requested the documents concerning the Supplemental Environmental Assessment that showed how relocating the entrances would have no adverse impact on the neighborhood. Now, the suit alleges that the MTA and FTA were arbitrary and capricious — legal jargon that basically means they were outside the bounds of their authority — in making the changes.

The complaint itself is a slog. It appears to draw a few conclusions of law when it should be presenting facts, but thanks to increasingly murky federal pleading standards, that’s the state of procedure in federal courts right now. The suit runs through a litany of complaints concerning the impact of the new entrances and the ways in which the MTA seemingly ignored legitimate environmental changes and also the gripes of neighbors who do not want to see subway entrances appear in front of their Upper East Side apartment building.

In an interview with New York 1, the plaintiff’s lawyers tried to distill the issue down. Because of the high volume of anticipated peak-hour subway riders at this station and because of the number of people in the building, this change, they allege, could impact thousands of residents, bus service and traffic along 86th St. “There’s only going to be left about 12 feet of sidewalk space left. A 40-percent reduction in sidewalk space. And so, 3,600 people; which is about the size of an army regiment, are going to flood — during peak hour alone — in front of this building,” attorney Joseph Ceccarelli said.

Another attorney for the plaintiffs — Jeffrey Glen — offered a simple solution. “The MTA can solve the problem on 86th Street very simply: they can put the station locations right on the corner where they belong,” he said. Of course, that alternative was ruled out when it became apparent that the building could not withstand the physical demands of corner entrances. It’s something of an engineering Catch-22.

The media coverage has been, by and large, sympathetic to the residents. Take, for instances, this DNA Info piece. Despite the fact that the two entrances point away from the driveways in question, Yorkshire Tower residents are concerned about pedestrian flow on an already-busy 86th St. “It will be a problem for our driveway because there will be no end to pedestrians all day long and part of the night,” Sheil Fine, a 74-year-old resident, said. “And this building has over 200 senior citizens with various problems of not being able to move or walk.”

ABC News too ran a story with equally faux-heartfelt claims. Speaking of the projected 3600 people who will use those entrances, a tenant’s association lawyer worried about the children. Won’t someone think of the children? “That is 60 people a minute cueing to get into a subway, moving past where children are being picked up by their school buses, where the elderly are getting to be picked up to go their senior citizen centers,” Glen said.

Call my cynical, call me unsympathetic, but I think there’s more going on here. In a sense, it’s just another example of NIMBYism writ large. First, it’s important to note a self-imposed limitation in the complaint. Paragraph 33 reads, “Plaintiffs Owners and Tenants Association do not oppose the Second Avenue Subway. Nor do they oppose subway stop at the corner of 86th Street and Second Avenue. What they oppose is the arbitrary and unnecessary siting of a subway entrance, and all of its associated adverse impacts, directly in front of Yorkshire Towers and its 2000 residents without the required statutory reviews.”

Talk about a backhanded acceptance. The Yorkshire Towers Tenants Associate loves the idea of the subway — as long as its in someone else’s front yard. Now that the entrances have been placed on either side of their curb-cut driveway, someone’s legal head must roll.

The staircases at Entrance 2 have been designed to minimize passenger flow in front Yorkshire Towers by siphoning riders away from the active driveway.

Furthermore, the entrances themselves feed away from the driveway. Because of the flow of traffic, sight lines, as the above diagram shows, exiting the driveways shouldn’t be impacted all that much, and it seems to me as though the plaintiffs are overstating the material adverse impact to shoot for the unlikely hope that the entrances will move.

Ultimately, the complaint doesn’t ask for much despite its length. It wants the MTA to conduct a proper Supplemental Environmental Impact Study and gain the proper approvals. It wants to see the costs associated with the complex engineering behind the Food Emporium site. It wants to make sure procedure is followed, and if procedure is followed or has been determined to be followed already, the Yorkshire Towers plaintiffs are out of luck. Of course, they could also want a settlement prior to any trial that sees the entrances moved.

For now, the complaint alleges that, since work isn’t due to begin on the 86th St. entrances for some time, this lawsuit won’t delay the Second Ave. Subway or add to its costs. The MTA isn’t commenting on this — or any — ongoing litigation. I think it’s tough to separate the legitimate gripes from the NIMBYism, and overwhelming the court with fact-based conclusory pleadings probably won’t help. This is just another wrinkle in the ongoing saga of the Second Avenue subway.

To read the full complaint, click through.

Yorkshire Towers Co. L.P. v. US DOT

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@ascottfalk February 18, 2011 - 1:56 am

Tonight of all nights, I have no patience for these people. You don’t see me asking the city to stop digging up my street for the next three years for the third water tunnel project: Do I prefer it be on my block? Maybe not, but I accept it.

So sick of sue-sue-sue.

Alex C February 18, 2011 - 2:43 am

This lawsuit is a joke. If that rendering of what the entrances will look like is at all accurate they have absolutely nothing to complain about. Zero. There’s no visual problems as they entrances are modern looking and don’t even reach the first floor. They point away from the driveway, so there is no reason for anyone going to the station to cross the driveway. And most importantly, it’s a structural issue that requires the placement of the entrances. NIMBY’s slowing progress as usual. Simple adult human common sense makes this lawsuit look insane. But common sense doesn’t seem to factor in with NIMBY complaints.

Hank February 18, 2011 - 9:49 am

This is why we need loser-pays. If these jokers had to pay the MTA’s legal costs for when they inevitably lose, it would discourage spurious lawsuits like this one.

Jason February 18, 2011 - 10:10 am


AK February 18, 2011 - 1:16 pm

We have sanctions/cost-shifting statutes for the filing of frivolous suits.

pete February 18, 2011 - 2:21 pm

In NY State?

Hank February 18, 2011 - 2:22 pm

Any lawyer will tell you how rare those are… I’m sick of the MTA (and other parts of the City) being held up by a cantankrous group of seniors and their litigious ways.

AK February 18, 2011 - 4:33 pm

I am a lawyer. They are rare (especially in NY State Court), but that’s because most lawsuits are not frivolous. There will always be a losing party in any dispute, but that mere fact shouldn’t necessarily lead to a fee shift, in part because that will essentially prevent poor people (often the victims of civil rights abuses and other fraudulent conduct) from bringing suits (the potential liability for them will approach bankruptcy), as Ben has noted at other times on this blog.

I think fee shifting is important, but it should only be used in frivolous suits. As much as I think this lawsuit is a dead loser, I don’t think it rises to the level of frivolous.

Nathanael March 3, 2011 - 3:15 pm

There’s another side to fee shifting. Fee shifting prevents large corporations from filing SLAPP suits. They do this with impunity in the US, much more rarely in jurisdictions where the defendants of a meritless suit can routinely recover full costs from the filer.

That’s what I support loser-pays, at least when the loser is the plaintiff.

Jon February 18, 2011 - 6:16 am

As a former resident of Yorkshire, I have first-hand knowledge that the motivation is pure NIMBY-based. The periodic tenants association meetings used to make me vomit from their looseness with the facts. Basically, picture a lobby full of 50-100 senior citizens complaining about everything, the same way they would about food at a restaurant. I always thought it was interesting that none of the under-60 crowd that makes up a majority of the building ever attended.
Most interesting, though, were the TWO YEARS meetings we had a while back trying to find ways to convince the MTA to move the entrance OUT OF THE FOOD EMPORIUM SUPERMARKET. Why? Because the tenants association was WORRIED ABOUT STRUCTURAL ENGINEERING PROBLEMS and the impact on the crucial load-bearing columns on that side of the building.

Tim February 18, 2011 - 9:05 am

The funny thing is, a lot of the folks complaining may not live to see the opening of the subway. How’s that for irony?

Hank February 18, 2011 - 9:54 am

As someone who lives very close to Yorkshire, I didn’t see a whole lot of courtesy out of them when they blocked the sidewalks with construction waste bins for over a year while they redid their facade….

IsaacB February 18, 2011 - 9:29 am

Buildings like Yorkshire happened because the demolition of the 2nd Avenue El made the neighborhood feel more attractive. A subway was promised before Yorkshire was built.

Yorkshire has features that few Manhattan buildings have; a circular drive and swimming pool below it. The city ought to look closely at this features and determine if they don’t adversely impact the environment. Maybe they can be condemned.

I wish there were a way of ensuring that no one from that building (or the people who work for them) ever get to ride that train when it gets completed.

I wish there was a way to make sure that

Adirondacker12800 February 20, 2011 - 8:17 pm

There’s a thought. Use eminent domain to take away their beloved driveway.

Al D February 18, 2011 - 9:29 am

Those poor, poor, poor, poor, poor residents. Not only will all these people be walking by their building, but there will be easy access to a subway. Sounds like Manhattan to me.

Perhaps they can have their building relocated to one of the vacant office lots in Whippany NJ. They will ne’er see a pedestrian or a subway again…

Hank February 18, 2011 - 9:56 am

Sorry if this has been answered elsewhere, but why have both entrances on the east side of Second? Couldn’t one be put on the west side, incorporated into the ancillary building there?

Alex C February 18, 2011 - 10:24 am

As the blog post mentions, structural issues apparently.

Hank February 18, 2011 - 12:28 pm

I understood that’s why they had to move the eastern entrance in front of the building out of the food emporium space.

However, why are both entrances on the east side? will the entire station cavern be over there under 86 as well? It seems more logical to have an entrance on the west side of 2nd for the downtown trains.

John-2 February 18, 2011 - 12:53 pm

With the deep tunnel stations, unless you’re building the mezzanine just below street level it’s not practical to have the old two entrances per each street corner set-up that you could do with cut-and-cover, when the mezzanine or station platform required a stairway going just one level down.

The new stations are going to be more like the D.C. Metro set-up, with just one or two entrance locations per station, which in turn also centralizes the ADA requirements any new station has to have (compare the 57th St.-Sixth Ave. station on the F to the 63rd St.-Lex stop as far as station access goes to see the difference in terms of street level access points between what the newest cut-and-cover station in Manhattan looks like and the F’s transfer point with the future first deep station on the Q’s Second Ave. extension).

Hank February 18, 2011 - 2:13 pm

Thanks! Makes perfect sense.

Patrick February 18, 2011 - 10:58 am

By the current design, subway riders would not walk past the building entrance, they would enter the subway on either side before passing it. If they move it to the corner, subway riders will have to walk past the building, increasing pedestrian trafic at the entrance. Isn’t this what they are avoid? Am I missing something or aren’t they shooting themselves in the foot?

Patrick February 18, 2011 - 11:09 am

And don’t alot of these people currently walk past their building on the way to the Lexington Avenue line? They too would be headed off by the eastern entrance resulting in fewer pedestrians than they have now. Unless they move the entrance, that is.

Tim February 18, 2011 - 4:13 pm

This is a good point. Most of the people comign form the east to use the subway are already heading towards the lex subway. Keeping the people going west onto that portion of the side walk and sending them down into the station as opposed to going into the driveway. If anything, the driveway should be cleared up by the removal of congestion.

SEAN February 18, 2011 - 12:06 pm

Shhh, be wary quiet, I’m hunting NIMBY’S. HAHAHAHAHAHA!

Arvy February 19, 2011 - 2:56 pm

well, I can understand not wanting the entrances in front of those driveways.

Bruce M February 19, 2011 - 4:28 pm

Living on York AVEnue, and having to walk all the way to Lexington, the idea of a subway entrance showing up on my doorstep would be a dream come true!

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