citizens defending libraries complaint filed 7-10-13 against the nypl

7/28/2019 Citizens Defending Libraries Complaint Filed 7-10-13 against the NYPL

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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORKCITIZENS DEFENDING LIBRARIES, :EDMUND MORRIS, ANNALYN SWAN, :STANLEY N. KATZ, THOMAS BEND ER,:DAVID NASAW, JOAN W. SCOTT, :CYNTHIA M. PYLE, CIIRISTABELGOUGH, and BLANCHE W EISENCOOK,

Plaintiffs,

Index No.:

- against -OMPLAINTDR ANTHON Y W. MARX, NEIL L.RUDENSTINE, BOARD OF TRUSTEES :OF THE NEW YORK PUBLIC LIBRARY, :NEW YO RK PUBLIC LIBRARY, ASTOR, :LENOX AND TILDEN FOUNDATIONS, :MICHAEL R. BLOOMBERG,VERONICA WHITE, NEW YORK CITY :DEPARTMENT OF PARKS ANDRECREATION, CITY OF NEW YORK, :ROBERT SILMAN ASSOCIATES,P.C., and JOSEPH TORTO RELLA ,

Defendants.-and-

STATE OF NEW YORK, NEW YORKSTATE OFFICE OF PARKS,RECREATION & HISTORICPRESERVATION (NEW YORKSTATE HISTORIC PRESERVATIONOFFICE),

Nom inal Defendants. :xPlaintiffs Citizens Defending Libraries, Edmund Morris, Annalyn Swan, Stanley N. Katz,

Thomas B ender, David Nasaw, Joan W . Scott, Cynthia M. Pyle, Christabel Gough, and Blanche


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We isen Cook (collectively, the "Coalition"), by and through their attorneys, Weiss & Hiller, PC, asand for their comp laint herein, allege and state as follows:

PRELIMINARY STATEMENT1. This is an action for injunctive relief. Plaintiffs comprise a co alition of aggrieved

historic preservationists, Pulitzer Prize-winning authors, National Book Award winners, scholars,professors, lecturers, writers, researchers, and concerned citizens, who seek to protect fromdemolition an irreplaceable portion of the main branch of the New York P ublic Librai- y, located inManhattan between 40th and 42nd Streets along Fifth Avenue and adjacent to Bryant Park (the"Central Library"). In particular, the C oalition seeks to prevent the destruction of seven stories ofiron and structural steel book stacks at the C entral Library (the "Stacks"), as well as the co ntinuingand resultant offsite displacement of m illions of book s to rem ote storage facilities, as part of a librarybranch sell-off, consolidation, and space-shrinkage project known as the Central Library Plan("CLP").

2. Upon information and belief, the demolition phase of the CL P (and perhaps additionalwork) is about to be implemented at the C entral Library surreptitiously by the N ew Y ork PublicLibrary, Astor, Lenox and Tilden Foundations ("NYPL "), in violation of a certain binding agreementto which the NY PL is a party, in contravention of the various trusts and indentures upon which theNYPL was founded, in derogation of New York law, and in violation of the Coalition's rights andthose of the general public, for whose benefit the NYPL was established.

3. Not only are the Stacks among the most important early examples of a highlyinnovative book storage system, but they simultaneously serve as part of the structural skeleton ofthe Central Library. The seven -story network of iron and steel Stacks structurally support the floor

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of the historic Rose Reading Room , which is situated directly above them. R emoval of the Stacks,and the offsite displacement of the materials they hold, threatens to endanger the Central Library'sstatus as one of the w orld's leading research facilities, and irrevocably alter the a rchitectural integrityof the Central Library, a New York City Landm ark and a National Historic Landmark.

4. Although the NYPL continually characterizes its plans as preliminary, the defendantNYPL Board of Trustees and its constituent mem bers ("Board of Trustees") have been pressing tostart demolition.

5. NYPL has applied for, and received from the New York City Department ofBuildings ("DOB"), no few er than seven building permits since June 4, 2013, including one suchpermit allowing defendant Robert Silman Associates, P.C. ("Silman PC"), the lead structuralengineering firm retained by the NY PL, inter alia, to remove the Stacks, to make "STRUCTU RALMODINCATIONS INCLUDING STEEL LINTELED OPENINGS AS SHOWN ON PLANS FILEDHERE W ITH FOR E ARLY W ORK PHASE 1B" (Job No. 1213334798), and another on or aboutJune 20, 2013, permitting Silman PC to make "STRUCTURAL MODIFICATIONS,INTERVENTION AND SHORING AS SHOW N ON PLANS FILED HEREW ITH FOR EARLYW ORK P HASE 1A" (Job No. 121234789).

6. If the Stacks were to be removed and the books permanently displaced from theCentral Library, the m embers of the public, including researchers, scholars, authors, students andothers for whose benefit the NY PL w as created, would be irreparably harmed. Acco rdingly, theCoalition has no choice but to com menc e this action and seek the injunctive relief requested herein.

7. As reflected below , the Coalition pleads four causes of action: (i) breach of a certain"1978 Agreemen t" (hereinafter defined) which expressly prohibits structural alteration of the C entral

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Library and which further requires the NYPL and City "to protect and preserve the historicalintegrity of features, materials, appearance, workmanship and environment" of the Central Library;"(ii) breach of m ultiple trust agreements and statutes which expressly prohibit the removal of booksfrom the Central Library; (iii) breach of fiduciary duty committed by the defendant Board ofTrustees; and (iv) negligence. All four causes of action seek injunctive relief in an effort to preventsevere and irreparable harm.

THE PARTIESPlaintiffs

8. Plaintiff Citizens Defending Libraries is, and at all relevant times has been, anunincorporated association of individuals and groups, operating and existing in the City and Stateof New Y ork, who are dedicated to the support, maintenance, and preservation of one of New YorkCity's most precious resource s -- public libraries ("Citizens"). Citizens coun ts amon g its mem bersscholars, researchers, authors, teachers, university professors, parents, students and other concern edindividuals who number in the thousands, many of whom regularly.use and depend upon, inter alia,the NY PL an d, in particular, the Central Library, for research and related pursuits.

9. Plaintiff Edmun d Mo rris maintains a residence in the County and State of New York.Mr. Morris is, and at all relevant times has been, a world-acclaimed author and scholar. He haswritten six books and, in 1980, Mr. Morris won the P ulitzer Prize and the National Book Aw ard forBiography for The Rise of Theodore Roosevelt, the first volume of what wou ld eventually becom ea trilogy on the life of Am erica's 26th President. In 1985, President Ronald Re agan appo inted Mr.Mo rris as his official biographer, whereupon M r. Morris spent the better part of the next 14 yearsresearching and w riting the story of President Reagan's life, culminating w ith the publication in 1999

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o f Dutch: A M em oir of R onald Reagan. Theodore Rex , the second volume o f the Roo sevelt trilogy,followed publication o f Dutch and wo n the Los Angeles Times Boo k Prize for B iography in 2002.Several additional wo rks, including Beethov en: The Universal Composer, a short biography, andColonel Roosevelt, the final book in the Roosevelt trilogy, fo llowed. For man y years, Mr. Mo rrishas been a regular visitor to the Cen tral Library, where he has m ade extensive use of the researchfacilities, including particularly, the boo ks housed in the Stacks. The remo val of the Stacks and thebooks therefrom, presumably in preparation for the alterations, has already interfered with Mr.Morris's scholarly pursuits and prevented his use of the Central Library as an effective researchinstitution, and on an ongo ing basis con tinues to do so.

10.laintiff An nalyn Swan is, and at all relevant times h as been, a citizen and residentof the Co unty and State of N ew Y ork. Ms. Swan is, and at all relevant times has been, a biographer,critic and editor. She is currently teaching a co urse entitled "Life W riting: The A rt of B iography."A fo rmer senior arts editor of Ne ws we e k , she is the author, w ith the art critic Mark Stevens, of deK ooning: A n A m erican M aster, the 2005 Pulitzer Prize-winning biograph y of the artist Willem deKo oning. The book also w on The N ational Book Critics Circle Prize for Biography, the Los A ngelesTimes Biography Award, and was named o ne of the 1 0 best books of 2005 by The New Y ork Times .She and M r. Stevens are currently at wo rk on a biog raphy o f the British painter Francis Bacon, tobe published in the United States by K nopf and in the United Kingdom by Harper Co llins. Ms. Swanhas been a regular visitor to the Central Library, where she ha s made extensive use o f the researchfacilities, including particularly, the boo ks housed in the Stacks. The remo val of the Stacks and thebooks therefrom, presumably in preparation for the alterations, has already interfered with Ms.Swan's scholarly pursuits and prevented her use of the Central Library as an effective research

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institution, and on an ong oing basis continues to do so.11. Plaintiff Stanley N . Katz is President Emeritus of the Am erican Council of Learned

Societies, the national humanities organization in the United States. Dr. Katz graduated m agna cumlaude from Harvard University in 1955 with a major in English History and Literature. He wastrained in British and American history at Harvard (Ph.D ., 1961), where he also attended law schoolin 1969-7 0. His recent research focuses upon the relationship of civil society and constitutionalismto democracy, an d upon the relationship of the United States to international hum an rights. He isthe Editor-in-Chief of the recently published Oxford International Encyclopedia of Legal History,and the Editor of The Oliver Wendell Holmes Devise History of the United States Supreme Court.He also w rites about higher education policy, and has published a blog for the Chronicle of HigherEducation. Although residing in Princeton, New Jersey, Dr. Katz has been a visitor of the CentralLibrary since 1957 (or for more than fifty years), where he has made extensive use of its researchfacilities, including particularly, the books housed in the Stacks. The removal of the S tacks and thebooks therefrom, presumably in preparation for the alterations, promises to interfere with Dr. Katz'sscholarly pursuits and to prevent his use of the Central Library as an effective research institution.

12. Plaintiff Professor Thom as Bend er is, and at all relevant times has been, a citizen andresident of the County and State of New York. Professor B ender is, and at all relevant times hasbeen, a University Professor of the Humanities at New York University, where he serves as anintellectual and cultural historian focusing on the United States. He has w ritten over 10 books andmultiple articles for scholarly journals. Over the years, he has also written for various magazinesand newspapers, including The New Y ork Times, The Nation, Los A ngeles Times, Chronicle ofHigher Education, Newsday, Skyline, and Democracy. The Central Library has been a core resource

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for Professor Be nder througho ut his professional life. Four of his boo ks were especially reliant onit: Tow ard an Urban V ision; New Y ork Intellect: A History of Intellectual life in N ew Y ork, from1750 to the Beginnings of Our Ow n Tim e; T he Unfinished City: New Y ork and the MetropolitanIdea; an d A Nat - ion A m ong N ations: A m erica's Place in W orld History. Professor Bender has alsobeen a Fellow at the Central Library's remarkable Cullman Center for Writers and Scholars. Theremoval of the Stacks and the books therefrom, presumably in preparation for the alterations,promises to interfere with P rofessor Bender 's scholarly pursuits, and to prevent his use of the CentralLibrary as an effective research institution.

13.laintiff Professor Dav id Nasaw is, and at all relevant times has been, an Am ericanauthor, biographer and historian who specializes in the cultural and social history of Early 20thCentury A merica. Professor Nasaw is on the faculty of the Graduate Cen ter of the City Universityof New York ("CU NY "), where he is the Arthur M . Schlesinger, Jr. Professor of History. In additionto writing numerous scholarly and popular books, Professor Nasaw has written for many publicationsincluding the Columbia Journalism Review, American Historical Review, American Heritage,Dissent, The New Y orker, The New Y ork T imes, The W all Street Journal, Slate, The London Rev iewof Books , and Conde Nast Traveler. He has appeared in several film documentaries, includingAmerica 1900 and two episodes of the History Channel's April 2006 miniseries, 10 Days ThatUnexpectedly Changed A m erica: "The Homestead Strike" and "The Assassination of PresidentM cKinley." Professor Nasaw is a two-time Pulitzer Prize finalist and has been cited extensively bythe United States and British media as an expert on the history of popular entertainment and the newsmedia. Professor Nasaw has been a regular visitor to the Central Library, where he has madeextensive u se of its research facilities, including particularly, the books hou sed in the Stacks. In

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addition, the doctoral students enrolled in Professor Nasaw's classes at the CUNY Graduate Centerare regularly assigned to conduct research at the NYP L. Removal of the Stacks and the books andother resource m aterials from the Ce ntral Library, presumably in preparation for the alterations,would impede Professor Nasaw's future research and prevent his use of the Central Library as aneffective research institution. Removal of the Stacks and the books therefrom also threatens tointerfere with Professor Nasaw pedagogically, as it would impair his students' access to the researchwhich may be necessary to their scholarly pursuits.

14. Plaintiff Professor Joan W . Scott is Harold Linder Professor in the School of SocialScience at the Institute for Advanced Study located in Princeton, New Jersey. She was appointedto the Institute in 1985. Before that, she was Na ncy Duke Lewis University Professor and Professorof History at Brown University, where she was the Founding Director of the Pembroke Center forTeaching and Re search on W omen. A historian by training, Professor Scott has written many booksand essays, in the fields of Feminist Theory, Modern French History and Women's History,including The Politics of the Veil. Several of her books have been awarded prizes by the AmericanHistorical Association, and have been translated into many languages, including French, Japanese,Turkish, Korean, Spanish, Bulgarian and Albanian. Born in Brooklyn, New York, and raised in thepublic library system of the C ity, she now lives in Princeton, New Jersey. The rem oval of the Stacksand the books therefrom, presumably in preparation for the alterations, has already interfered w ithProfessor Scott's scholarly pursuits and prevented her use of the Central Library as an effectiveresearch institution, and continues to do so.

15. Plaintiff Cynthia Munro Pyle is, and at all relevant times has been, a citizen andresident of the County and S tate of New Y ork. Dr. Pyle is, and at all relevant t imes has been, an

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intellectual and cultural historian, having received a P h.D. from C olumbia Un iversity, and havingresearched and w ritten books, including Das T ierbuch des Petrus Candidus. Eine Einfu hrung, whichsubsequently was translated into Italian and Spanish, and M ilan and Lom bardy in the R enaissance:Essays in Cultural History, as w ell as multiple articles for scholarly journals. Dr. Pyle has w orkedin biological laboratories and participated in research projects at Harvard University and theMassachusetts Institute of Technology. From 1988 to 1993, Dr. Pyle founded and ran theRenaissance Studies Program at the Graduate Center of CUN Y. For many years, Dr. Pyle has beena regular visitor to the C entral Library, where she has made e xtensive use of the research facilities,including particularly, the books housed in the Stacks. The removal of the Stack s and the book stherefrom, presumab ly in preparation for the alterations, has interfered w ith Dr. Pyle's scholarlypursuits over the past several years, and increasingly over the past year, has prevented her use of theCentral Library a s an effective research institution.

16. Plaintiffhristabel Gough is, and at all relevant times has be en, a citizen and residentof the County and State of New York. M s. Gough serves as Secretary of the Society for Architectureof the City, an all-volunteer historic preservation advocac y group, and has regularly used the C entralLibrary for more than 50 years. Ms. Go ugh w as shocked recently to learn that a collection of booksupon w hich she relies regularly w as mov ed to off-site storage in preparation for demolition of theStacks, as part of the CLP. The removal of the Stacks and the books therefrom, presumably inpreparation for the alterations, has already interfered with Ms. Gough's use and enjoyment of theCentral Library, and on an ong oing basis continues to do so.

17. Plaintiff Dr. Blanche W eisen Cook is, and at all relevant times has been, a residentof the State and City of New York. She received her Bachelor of Arts from Hunter, and her M asters

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and Ph.D. from Johns Hopkins She is currently a Distinguished Professor of History and Women'sStudies at John Jay College of Criminal Justice and the Graduate Center of CUNY. ProfessorWeisen Cook has written three books: Eleanor Roosevelt, Volume I, 1884-1933 (Viking, Penguin);Eleanor Roosevelt, Volume II, 1933-1938 (Viking, Penguin, and Bloombury UK); and TheDeclassified Eisenhower: A Divided Legacy of Peace and Political Warfare (Doubleday, Penguin).Professor W eisen Cook has a lso served as an editor and/or contributor on another four books, andauthored approximately 40 articles during h r storied career as a scholar and author. ProfessorWeisen Cook has used the books shelved in the Stacks, as well as the Rose Reading Room,

throughout her life. The removal of the Stacks and the books therefrom, presumably in preparationfor the alterations, has already interfered with Professor Weisen Cook's scholarly pursuits andprevented her use of the C entral Library as an effective research institution, and on an ongoing b asiscontinues to do so.Defendants

18. Defendant N YPL is, and at all relevant times has been, a private foundation formallyknown as the "N ew Y ork Public Library, Astor, Lenox and T ilden Foundations." The NY PL is theproduct of the consolidation of three libraries -- the Astor Library, the Leno x Library, and the TildenTrust -- into a single corporation, pursuant to the terms of a form al Agreem ent of C onsolidation,dated May 23, 1895 (the "Agreement of Consolidation") (Exh. 1).

19. Pursuant to a certain Lease and Agreem ent dated Decem ber 8, 1897 (the "Lease")(Exh. 2), the NYPL occupies, and at all relevant times has occupied, the Central Library, where thecollections of the three consolidated libraries are to be maintained and administered.

20. Upon information and belief, defendant Dr. Anthony W . Marx ("Dr. M arx") is, and

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at all relevant times has been, a citizen of the State of N ew Y ork, working in association with theNYPL in the County of New York.

21. Dr. Marx is, and since 2011 has be en, President and Chief Executive Officer of theNYPL. Upon information and belief, Dr. Marx supervises all of the NYPL's operations, andparticipated in the creation and undertaking of the C LP, including, without limitation, the imminentdemolition and elimination of the Stacks.

22. Defendant Board of Trustees is responsible to ensure NYP L's compliance with, andadherence to, the terms and conditions of the various trust resolutions pursuant to which the

consolidated NYPL corporation was formed.23. Upo n information and belief, defenda nt Neil L. Rudenstine ("Mr. Rudenstine") is,

and at all relevant times has been, a citizen of the State of New York, working in association withthe NYPL in the County of N ew Y ork. Mr. Rudenstine is, and since 2011 has been, Chairman ofthe Board of Trustees. As such, M r. Rudenstine is responsible to ensure NYP L's comp liance with,and adherenc e to, the terms and conditions of the various trust resolutions pursuant to w hich theconsolidated NYPL corporation was formed.

24. Upon information and belief, Mr. Rudenstine supervises the Board of Trustees, andhas participated in the conception, creation and undertaking of the CLP, including, withoutlimitation, the imminent dem olition of the Stacks and the ongoing removal of the books.

25. Defendant New York City Departm ent of Parks and Recreation ("NYC D OP") is aCity governmental agency that exists pursuant to Chapter 21, 531 of the City Charter (the"Charter").

26. The N YC D OP ha s the duty and responsibility, among other things, to review any

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proposed alterations or modifications to the Central Library, including, inter alia, under Charter, Ch.21, 533(a) and 56 New York C ode, Rules and Regulations 1-05(o).

27. Upon information and belief, NYC DOP h as yet to complete a review of the CLP asit relates to dem olition of the Stacks and rem oval of the books.

28. Upon information and belief, the NYC DOP has yet to issue any approvals withregard to dem olition of the Stacks and removal of the books.

29. Defendant Veronica White is Commissioner of defendant NYC DOP. As such,Commissioner White has the authority and the duty to supervise and direct the functions and

activities of the NYC DOT' with respect to the NYPL and the CLP, and in accordance with the lawsof the City and State of New York.

30. Defendant Michael R. Bloomberg is Mayor of the City of New York, havingresponsibility for overseeing and administering the public affairs and public lands within its fiveboroughs, including all governm ental and pub lic administrative oversight.

31. Defendant City of New York is a governmental body charged with responsibility foroverseeing and administering the public affairs and public lands within its five boroughs, includingall governmental an d p ublic administrative o versight.

32. Defend ant City of New Y ork is the owner of the Central Library building, subject tothe Lease with the NYPL.

33. Upon infow iation and belief, defend ant Siknan PC is, and at all relevant times hasbeen, a professional corporation orga nized and existing under the laws of the State of New York,with a principal place of business located at 88 University Place, New York, New York.

34. Upon information and belief, Silman PC is, and at all relevant times has been,

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engaged in the business of structural engineering.35. Upon information and belief, Silman PC has been engaged by the NYPL in

connection with the CLP, to perform engineering and construction-related services, including,without limitation, the demolition of the Stack s and rem oval of the books.

36. Defendant Joseph Tortorella ("Mx. T ortorella") is, and at all relevant times has been,a citizen of the State of New Y ork, working in association with Silman PC in N ew Y ork.

37:pon informa tion and belief, Mr. Tortorella is, and at all relevant times has be en,President of Silman PC .38. Upon information and belief, Mx. Tortorella has participated in the conception,

creation and undertaking of the CL P, including, without limitation, the imm inent demolition of theStacks and the ongoing remov al of the books.

39. On behalf of Silman PC and the NYPL , Mr. T ortorella applied for and obtained thosecertain building permits dated June 4, 2013, and Jun e 20, 2013, allowing the NYP L and S ilman P Cto make "STRUCTURAL MO DIFICATIONS INCLUDING STEEL LINTELED OPE NINGS ASSHOWN ON PLANS FILED [WITH THE DOB] FOR EARLY WORK PHASE 1B" (Job No.1213334798), and "STRUCTLTRAL M ODIFICATIONS, INTERVENTION AND SHORING ASSHOWN ON PLANS FILED [WITH THE DOB] FOR EARLY WORK PHASE 1A" (Job No.12123 4789), respectively.

40. Nominal defendant New York State Office of Parks, Recreation & HistoricPreservation ("PARKS ") is a State governmental agency responsible for the review and approval ofconstruction projects affecting landmarked properties such as the Central Library, under 106 of theNational Historic Preservation Ac t of 1966 and 14.09 of the State Historic Preservation Act of

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1980.41. PAR KS is party to a contract, dated June 2, 1978 with the NYPL and the City (the

"1978 Agreement") (Exh. 3), pursuant to which the NYPL and the City agreed: (i) "to make nochanges in the structure or improv emen ts of said premises or additions thereto without the priorapproval of PARKS" (Exh. 3 IF); and (ii) "to protect and preserve the historical integrity of features,materials, appearance, workmanship and environment" of the Central Library (Exh. 3 4) (discussedin greater detail, infra).

42. The Stacks constitute a com ponent of the C entral Library's internal structure.43. Upon information and belief, PARKS has not approved any ch anges in the structure

or any construction related to removal of the Stack s.44. Nominal defendant New York S tate Historic Preservation Office ("SHPO") is the

bureau of PARKS directly responsible for the review and evaluation of construction projectsaffecting landmarked properties such as the Central Library. Upon information and belief, SHP()has yet to complete a review and evaluation of any changes in the structure or any constructionrelated to removal of the Stacks as contemplated by the CL P.

VENUE45. Venue is proper pursuant to CPLR 503 (a)-(c), 504(3), and 507, as the county in

which: (1) most plaintiffs reside; (ii) the defendant trustee was appointed; (iii) the principal officesof the NYP L and Silman PC are located; (iv) the cause of action arose; and (v) the C entral Libraryis situated.

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FACTS RELEVANT TO ALL CLAIMSThe Three Library Com panies

46 . Prior to entering into the Agreement of Consolidation in May 1895, three corporateentities known as "The Trustees of the Astor Library," "The Trustees of the Lenox Library," and"The Tilden Trust," respectively (collectively, the "Three Library Companies"), were separatelyincorporated and "organized as library corn; allies for the purpose of carrying on libraries in the Cityand County of New York" (Agreement of Consolidation, Fourth Recital) (Exh. 1).

47 . Prior to their consolidation into the NYPL, each o f the Three Library Com panies was

subject to resolutions intended to ensure the prom otion of the several objects and purpo ses set forthin each of their respective acts of incorporation (Agreement of Consolidation, Paragraph Second)(Exh. 1).

48 . Pursuant to the Agreement of Consolidation, the Three Library Companies wereconsolidated into a single corporation, thereby forming the NYPL (Exh. 1).

49 . Upon consolidation of the Three Library Companies into the NYPL, each of theseveral objects and purposes set forth in each of their respective acts of incorporation was carriedover into the NYPL, to be observed and maintained by its Board of Trustees (Agreement ofConsolidation, Paragraph Second) (Exh. 1).The Astor Library

50 . The entity, "The Trustees of the Astor Library," was incorporated by State Act onJanuary 18, 1849 (Exh. 1, First Recital), with the endowment of the late John Jacob Astor, whodesired, as expressed in his will, "to render a public benefit to the City of New York" by the"establishment of a Public Library to be ac cessible at all reasonable hours and times, for general use,

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free of expense to persons resorting thereto" (Ne w Y ork Public Library Bu lletin, Vol. 1, No. 1, p. 3)(the "NY PL B ulletin") (Exh. 4).'

51. The Trustees of the A stor Library, at a very early period in the corporation's history,"expressed their conviction 'that not only the convenience of the public, but the preservation andsafety of the library absolutely demanded. that the books should not be lent out or taken ,from thelibraa buildihg. under any circumstances. In a library of reference, intended for students, properlyeconom ical of time, and often coming from a d istance for consultation, the necessity for every bookrequired being always ready for e xamination without delay. must be apparent" (NY PL B ulletin, I .1,4; emphasis added) (the "Con viction").

52. In a report made to the Legislature of the State of New York in 1858, the AstorLibrary Trustees reiterated their Conviction, and further stated that they had "deemed it proper an dnecessary to prevent any further agitation of the subject by entering on their records a stipulationexpressing those views in such a form as to furnish a pledge, not only to the public, but to everyfriend of learning, who may he reafter feel disposed to aid the library by donations or endow ments"(NY PL Bulletin, I .1, 5; emphasis added).

53. A reference to the minutes of the A stor Library Trustees show s that this pledge, interalia, to the public, was ad opted at their meeting on July 29, 1857, in the following terms:

Mr. [W illiam B ] Astor stated that the donations by him made, and some intend ed tobe hereafter made, were on the understanding that i t was the sett led and u nchangeablebasis of administering the Library, that its contents should remain in the Libraryrooms, for use by readers there, and should not be lent out or allowed to be takenfrom the rooms; and he requested that the views of the Board be freely and fully

'Since the NY PL B ulletin is 368 pages in length, only the pertinent pages therefrom areannexed h ereto collectively as Exh. 4.

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expressed. It was thereupon resolved, that the settled and unchangeable plan ofadministeringthe Library is the one above expressed by Mr. Astor; and the donationsin money, land and otherwise, received from Mr. Astor, and to be hereafter receivedfrom him, and from other friends of learning, are received and will be administeredaccording to such plan, an d no t otherwise (NYPL Bulletin, I.1, 5) (emph asis added).54 . The NYPL Bulletin, which was prepared under the direction of the NYPL's then-

Board of Trustees, refers to the foregoing "settled and unchangeable plan of administering theLibrary" as the sole purpose to which the larger portion of the Astor endowments must be devoted:

Upon these terms, therefore, the larger part of the endowments of the Astor Librarywere expressly received .... To that purpose alone could their funds be rightfullydevoted" (NYPL Bulletin I.1, 5) (emphasis added).

The Lenox L ibrary55 . The entity, "The Trustees of the Lenox Library," was incorporated by an Act of the

State Legislature on January 20, 1870 (Exh. 1, Second Recital), with an original endowment fromJames Lenox consisting of land, money, and "the great collection of manuscripts, Bibles, earlyprinted books, engravings, maps, statuary, paintings, drawings and other works of art which he hadgathered during a long life" (NYPL Bulletin, I, 5).

56 . The Leno x Trustees considered that the "permanent security and preservation" of Mr.Lenox's "special collections" was their "first duty" (NYPL Bulletin ,.1, 7):

They regarded the Library as having been established "for the public exhibition andscholarly use of some of the most rare and precious of such monuments andmemorials of the typographic art and the historic past" as had escaped the wreck oftime; and such volumes were "not to be subjected to the constant service ofcirculation or use in which they may be worn out or destroyed" (id.; emphasis added).

Thus, the Lenox Trustees were particularly concerned that transportation would damage theircollection and that therefore, as with the limitation imposed upon the Astor Collection, the bookswere to be restricted to the Central Library and not removed therefrom (id.).

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The T i lden T rust57 . The Tilden Trust was established at the bequest of Samuel J. Tilden "for the

establishment and maintenance of a free Library and Reading Room in the City of New York" (Exh.1, Third Recital).

58 . The State Legislature passed the incorporating Act with regard to The Tilden Truston March 26, 1887, but the legalities of the endowment were disputed until in or about 1892, whenan agreement was entered into between The Tilden Trust and a niece of Mr. Tilden, after extensivelitigation regarding the validity of residuary clauses (NYPL Bulletin I.1, 9). By December 31, 1894,"The Tilden Trust was in possession of Mr. Tilden's fine private library, containing about 20,000volumes" (Id. at 10).Form ation of the Central Library through theConsolidat ion of the Three Library Com panies

59 . In 1895, the members of the Boards of Trustees of the Three Library Companiesbegan negotiations concerning the consolidation of the Three Library Com panies "in such form thatthe benefits of the three institutions might be more widely disseminated among the people" (NYPLBulletin 1.1, 10) (the "Consolidation").

60 . On M ay 23, 1895, the aforesaid negotiations culminated in the execution of a formalAgreement of Consolidation by the Three Library Companies (Exh. 1).

61 . The terms of the Agreement of Consolidation were simple:The new corporation was to establish and maintain a free public library and readingroom in the City of New York, with such branches as might be deemed advisable,and was to "continue and promote the several objects and purposes set forth in theseveral acts of incorporation of The Trustees of the Astor Library, The Trustees ofthe Lenox Library and The Tilden Trust." It was distinctly provided that the newcorporation [i.e., the NYPL] should make appropriate provision for faithfully

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keeping and observing all the limitations, conditions or restrictions unde r whichany of the funds or property of the several constituent corporations were to beused or enjoyed (NYPL Bulletin, I.1, 11) (emphasis added).62. The aforesaid "limitations, conditions, [and] restrictions," with which the newly-

consolidated NYPL w ould be required to "faithfully" com ply (id.), include the obligation to ensurethat no books or other m aterials be either lent out or otherw ise removed fro m the Cen tral Library(Exh. 1).

63. Upon information and belief, the then-Board of Trustees of the NYPL wished tolocate a parcel of property large enough to provide adequate space for the co nsolidated collectionand future expansion, but were co ncerned that the NYPL would beco me bankrupt if it had to fundthe land ac quisition and building construction.

64. On March 25, 1896, the said Board of Trustees presented an address to the Hon.W illiam L. S trong (then-Mayo r of New York City), whereby it applied to the City for a grant of landand building capital (the "Address") (E xh. 5). In pertinent part, the Board of Trustees representedto Mayor Strong that:

The charters of the individual corporations and the trusts assumed towards thefounders of the libraries and other benefac tors, render it necessary in any event thatthe Astor and L enox collections shall always rem ain in the library for use by read ersthere (Exh. 5) (emphasis added).65. In May 1 896, the State Legislature passed a law author izing the predecessor of the

defendant, NYC DO P, to enter into a contract with the NYPL for the use and o ccupation of the landcurrently occu pied by the Central Library , "for establishing and maintaining a free public library andreading room and carrying out the objects and purposes of said corporation * * * and said contractmay provide that such use and occupation may continue so long as the said New York Public

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Library, Astor, Lenox and Tilden Foundations, or its successors, shall maintain such free library andreading room upon said land" (NYPL Bulletin, 1.1, 20) (emphasis added). This Act was signed intolaw by the Governor of the State of New York on May 19, 1896 (Bulletin, 1.1, 20).

66 . The aforesaid "objects and purposes" of the newly-consolidated NY PL were and are,among other things, to store in, and not remove from, the library building, the books and othermaterials housed therein, so as to ensure that they are available for immediate use by scholars,students and other members of the general public (Exh. 1), as stated, inter alia, in the Board'sAddress to Mayor Strong (Exh. 5 ["the Astor and Lenox collections shall always remain in the

library for use by readers there]; and see NYPL Bulletin, 11, 5 ["its contents should remain in theLibrary rooms, for use by readers there, and should not be lent out or allowed to be taken from therooms"]; emphasis added).

67 . The Board next applied to the City's Board of Aldermen for a resolution allowing theland on which the NYPL building would be situated ("Public Land") to be controlled by the then-Department of Parks, which such resolution was adopted by the City on December 22, 1896(Bulletin, 1.1, 21).

68 . The City Charter was thereafter amended to allow the City to enter into a contractwith the NYPL to use the Public Land "for establishing and maintaining thereon a free public libraryand reading room, and for carrying out the objects and purposes of said corporation in accordancewith the provisions of the agreement of consolidation between the trustees" (Exh. 6 hereto)(emphasis added).

69 . On May 19, 1897, the Governor signed an Act providing for the construction of theCentral Library to be occupied by the NY PL, inter alia, 'for carrying out the objects and purposes

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of said corporation. in accordance with the agreement of consolidation whereby said corporationwas constituted, and the several acts incorporating the trustees of the Astor library, the trustees ofthe Lenox library and the Tilden trust" (Exh. 7 hereto) (emphasis added).The L ease

70. On D ecember 8, 1897, the NYP L entered into the Lease for the Central Library withthe City, for "so long as the [NYPL] shall use and occupy such building for the purpose ofmaintaining therein a pu blic library and reading room and carrying on the objects and purposes ofthe said corporation, as provided by its said agreement of consolidation and the several acts

incorporating the Trustees of the Astor Library, the Trustees of the Lenox Library, and The TildenTrust. respectively" (Exh. 2) (emphasis added).

71. The Le ase was entered into after the Board of Trustees had represented to the City,in its Add ress to Mayo r Strong, its Conviction that the library's books "shall always remain in thelibrary for use by readers there" (Exh. 5) (emphasis added).The W inning Design Containing the Stacks

72. In March 18 99, the NY PL hosted an arch itectural com petition for the design of theCentral Library.

73. The winn ing design was prepared by the architectural firm, Carrere & Hastings.74. Upon information and belief, construction of the Central Library in accordance with

Carrere & H astings's drawing s was fmished in 191 1, having taken 11 years to com plete at a cost ofapproximately $9 million -- in excess of $218 Million in today's dollars.

75 . The w inning architectural design prepared by Carrere & Hastings, included the Stacksas an architecturally and structurally integral piece of the Central Library.

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76. The S tacks are both the literal and metaphorical heart of the Central Library.77. The Stacks are positioned directly below the Rose Reading Room of the Central

Library in order to, among other things, ensure that books could be promptly retrieved and deliveredto scholars and other visitors in need of resource materials, and then promptly returned to the Stacks.

78. Dem olition of the Stacks, if permitted, would, amo ng other things, comprom ise thearchitectural and structural integrity of the now-landmarked C entral Library, and undermine itscritical design, the purpose of which was to facilitate expedited, comprehensive, and efficientresearch.The 1978 Agreement withPARKS and the Public at Large

79. On June 2, 1978, the NYPL entered into the 1978 Agreement with the City andPAR KS, pursuant to which the NYP L and the City promised "to m ake no changes in the structureor improvements of said premises or additions thereto w ithout the prior approval of PA RK S" (Exh.3, 117) (emphasis added).

80. Upon information and belief, PARKS has never approved any changes in the structureor any co nstruction relating to removal of the Stacks.

81. Indeed, upon information and belief, the only New York State action with respect tothe CLP occurred on June 27, 2013, when the S tate Assembly Standing Com mittee on Librariesconvened its first hearing to consider the CLP and, in particular, removal of the Stacks ("StateCommittee").

82. The State Committee did not approve the CLP at the aforesaid hearing or at any othertime.

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83.ursuant to the 1978 Agreement, the NY PL and the C ity further expressly agreed "toprotect and p reserve the historical integri ty o f features, materials, appearance, workmanship andenvironment" of the C entral Library (Exh. 3 4) and "to hold, m aintain and administer [the CentralLibrary] for the benefit of the public at large" (Id. 8) (emphasis added).

84.embe rs of the general public constitute intended third-party beneficiaries under the1973 Ag reement.The Central Library P lan5nder the CLP, the NYP L intends to:A . Gut the Central Library of the seven stories of iron and structural steelStacks;B. Displace the millions of books and other resource materials currently and

previously shelved in the Stacks to remote offsite storage facilities, inviolation of, inter alia, the NY PL's Charter and the objects and purposes ofthe NY PL with which the defendants Board of Trustees, Dr. Marx and M r.Rudenstine are required to comply;

C . Sell off for private real estate development two branches of the N YPL -- theMid-Manhattan Library ("Mid-Manhattan" Branch) and the Science, Businessand Industry Library ("SIBL" Branch);

D . Shoe-ho rn the collections of the SIBL and M id-Man hattan Branches, or likelya very significantly reduced version o f those collections, into the area of theCentral Library forme rly occupied by the Stacks; andE. Convert the Central Library from one of the world's foremost researchinstitutions, featuring on-site books, manuscripts and other original resourcematerials from all over the world, into an oversized circulating library.

86.nder the CL P, the work to remove the Stacks, upon which the Cen tral Library reliesfor structural support, is slated to be performed while the Central Library, including the RoseReading Room , is to rema in open.

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87. Mr. Tortorella, the President of structural engineering firm Silman PC , which, uponinfoiniation and belief, has been retained by the N YPL to implem ent the CLP , including rem ovalof the Stacks, has com pared rem oval of the Stacks to "cutting the legs off a table while dinner isbeing served" (The New Y ork T imes , January 29, 2013) (Exh. 8).

88. In the words of the late Ada Louise Hux table, the Dean of N ew Y ork Architecturecritics, the CL P "is a plan devised out of a profound ignorance of, or willful disregard for, not onlythe library's original concept and de sign, but also the folly of altering its meaning and m ission andcompromising its historical and architectural integrity. You don't 'update' a masterpiece" (Ada

Louise Huxtable, "Undertaking its Destruction," W all Street Journal, December 3, 2012) (Exh. 9).89. Similarly, The New York Times Architecture critic Michael Kimmelman has

dismissed the proposed new ly designed Central Library as having "all the elegance and distinctionof a suburban mall" ( The Ne w Y ork T ime s , January 29, 2013) (Exh. 8), while Bloomberg N ewsArchitecture critic James Russell described it as "thin architectural gruel" (James Russell, "N.Y.Public Library, Norman Foster Evict a M illion Books," Bloomberg New s, December 19, 2012) (Exh.10).

FIRST CAUSE OF ACTION90. The Coalition repeats and realleges each and every allegation contained in the

preceding para graphs 1 throug h 89, inclusive, as if set forth in full herein.91. The 19 78 A greement constitutes an enforceable contract.92. Under the 1978 Agreement, the NYPL and the City each explicitly promised "to

protect and preserve the historical integrity of features, m aterials, appearance, wo rkmanship andenvironment" of the Central Library (Exh. 3 4).

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93. The Stacks constitute, inter alia, a "feature" and a part of the "materials,""appearance," "workmanship," and "environment" of the Central Library.

94. Under the 1978 Agreement, the NY PL and the City each explicitly promised "to makeno changes in the structure or improvements of said premises [i.e., the Central Library] or additionsthereto without the prior approval of PAR KS" (Exh. 3 7 ).

95. Rem oval of the Stacks would con stitute a "change in the structure or improvementsof said premises [i.e., the Central Library]" (Id.).

96. Upon information and belief, PA RKS has not approved the removal of the Stacks.97. Upon information and belief, PA RKS has not approved any construction work at the

Central Library relating to the planned remova l of the Stacks.98. Within the past two m onths the NY PL ha s obtained no fewer than seven building

permits from the DO B (i.e., from the City, not PA RKS, a State governmental body), including thosecertain permits dated June 4, 2013, and June 20, 2013, allowing the N YP L and Silman PC to make"STRUCTURAL MODIFICATIONS INCLUD ING STEEL LINTELED O PENINGS AS SHOWNON P LAN S FILED HEREWITH FOR EARLY WOR K PHA SE 1B" (Job No. 1213334798), and"STRUCTURAL MO DIFICATIONS, INTERVENTION AND SHORING AS SHOWN ON PLANSFILED HEREW ITH FOR EARLY WORK PHASE 1A " ( Job No. 121234789) .

99. Defendants have breached, and threaten further breach of, the 1978 Ag reement by,inter alia, planning for, and taking action that directly threatens the imminent removal of the Stacks.Such action, inter alia, wou ld: (i) constitute a structural alteration of the C entral Library withoutpermission from PA RKS, in violation of 7 of the 197 8 A greement (Exh. 3); and (ii) constitute abreach of defendants' obligations under 4 of the 1978 Agreement, by which defendants are

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obligated "to protect and preserve the historical integrity of features, materials, appearance,workmanship and environment" of the Central Library (Exh. 3).

100. Members of the public, including, inter alia, the members of the Coalition, areintended third-party beneficiaries under the 1978 Ag reement.

101. Removal of the Stacks and books, in whole or in part, threatens to, and would, causethe members of the Coalition to suffer permanent and irreparable harm in their professions, businessand property.

102. Remo val of the Stacks, in w hole or in part, threatens to, and wo uld, injure the public-at-large, who have the right as third-party beneficiaries under the 1978 Agreement to have theCentral Library "maintained so that the historical integrity of features, materials, appearance,workmanship and environment be protected and preserved" (Exh. 3 2).

103. If defendants are not immediately enjoined from removing the Stacks and books, inwho le or in part, and from doing any co nstruction work related to any such remova l, the mem bersof the Coa lition and the pub lic-at-large would be irreparably injured.

104. By reaso n of the foregoing, the Coa lition is entitled to orders: (i) imm ediately andpermanently restraining all further demolition and construction work with respect to the Stacksand/or other comp onents of the CLP ; (ii) mandating that defendants return all of the books and othermaterials previously housed in the S tacks to the C entral Library; and (iii) declaring that the C entralLibrary shall not undergo any construction and/or other work that may affect the structure of thebuilding without consent of PA RK S.

105. The m embers of the C oalition and the public-at-large have no adequate rem edy atlaw.

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SECOND CAUSE OF ACTION

106. The Coalition repeats and realleges each and every allegation contained in thepreceding paragraphs I through 105, inclusive, as if set forth in full herein.

107. In addition to those books already rem oved, the removal of the Stacks w ould resultin the displacement of any rem aining books to rem ote off-site storage facilities, as contemplated bythe CL P (collectively, the "Displacement").

108. The Displacement has, threatens t-_), and would continue to, violate the explicitmandate of the Astor, Lenox and Tilden Trusts, inter alia, that the Central Library's books "shallalways remain in the library for use by readers there" (Exh. 5), as carried forward and incorporatedby reference into the Agreement of Consolidation, the NYPL's Charter, the Address, the Lease withthe City, and the 1978 Agree ment.

109. Members of the Coalition, as well as the public-at-large, are intended third-partybeneficiaries of the trust resolution requ iring, inter cilia, that "the Astor and L enox collections shallalways remain in the library for use by readers there" (Exh. 5), as carried forward and incorporatedby reference into the Agreement of Consolidation, the NYPL's Charter, the Address, the Lease withthe City, and the 1978 Agree ment.

110. Displacement threatens to, and w ould constitute a breach of trust, proximately and/orsubstantially causing memb ers of the Coalition and the public-at-large severe and irreparable injury.

111. By reason of the foregoing, the Coalition is entitled to orders: (i) mandating thatdefendan ts return all of the books and othe r materials previously housed in the Stacks to the CentralLibrary; and (ii) declaring that the books and other ma terials previously and currently housed in theStacks shall not be removed from the C entral Library.

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112. The m embe rs of the Coalition and the public-at-large have no adequate rem edy atlaw.

THIRD CAUSE OF ACTION

113. The Coalition repeats and realleges each and every allegation contained in thepreceding paragraphs 1 through 1 12, inclusive, as if set forth in full herein.

114. Dr. M arx, Mr. R udenstine, and the Board of Trustees are fiduciaries under the NY PLCharter and the A stor, Lenox and Tilden Trusts.

115. As fiduciaries, Dr. M arx, M r. Rudenstine, and the Board of Trustees ow e duties ofcare, loyalty, and good faith to the beneficiaries under the afo resaid trusts -- the mem bers of theCoalition and the general public.

116. Dr. M arx, M r. Rudenstine, and the Board of Trustees have breached their duties ofcare and good faith by, inter alia: (i) authorizing the removal of the Central Library's books toremote .offsite storage facilities; (ii) engaging Silman PC to prepare plans and apply for perm itswhich would result in the demolition of the Stacks and the continued removal of books; (ii)implementing the Displacement; (iii) transforming the Central Library from N ew York's preeminentresearch institution into an oversized circulation branch; (iv) destroying the very principles andobjectives upon w hich the NY PL w as established; (v) acting in direct violation of the objects andpurposes of the Trusts; and (vi) otherw ise breaching their fiduciary duties of care a nd good faith.

117. Upon information and belief, one or more m embe rs of the Board of Trustees havebreached their duties of loyalty by voting in favor of, and supporting, the CLP, which would benefitone or more of them person ally through the sale of library properties (including, without limitation,intellectual property) to p rivate development, w ithout disclosing the nature of their pe rsonal interests

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to the other mem bers of the Board.118. Displacement has already and will in the future constitute a breach of trust,

proximately and/or substantially causing members of the Coalition and the public-at-large severe andirreparable injury.

119. By reason of the foregoing, the C oalition is entitled to an order: (i) immediately andpermanently restraining all further demolition and construction work with respect to the Stacksand/or other components of the C LP; (ii) mandating that defendants return all of the books and othermaterials previously housed in the Stacks to the Central Library; (iii) declaring that the CentralLibrary shall not undergo any construction and/or other work that may affect the structure of thebuilding w ithout the consent of PA RKS; and (iv) voiding any and all unconsummated transactionspertaining to the CLP in which interested Trustees have participated.

120. The mem bers of the Coalition have no adequate remedy at law.FOURTH CAUSE OF ACTION

121. The Coalition repeats and realleges each and every allegation contained in theprecedin g paragrap hs 1 through 120 , inclusive, as if set forth in full herein.

122. Defendants Silman P C an d Mr. Tortorella owe du ties of care and good faith to theCoalition and other members of the gen eral public who use the Central Library.

123. Upon information and belief, Silman PC and M r. Tortorella have devised a plan toremove the Stacks while the Central Library, including the Rose Reading Room , remains in use bythe Coalition and other members of the general public.

124. The Rose R eading Room is situated directly above, and is supported fully by, theStacks.

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125. Rem oval of the Stacks would com promise the architectural and structural integrityof the Central Library, which is both a National Historic Landmark and a New York City Landmark.

126. Rem oval of the Stacks threatens to undermine the structural integrity of the CentralLibrary, including and especially the Rose R eading Room , creating an imminent danger of seriousinjury to persons and property.

127. Rem oval of the Stacks would constitute negligence, indeed gross negligence.128. By reason of the foregoing, the Coalition is entitled to an order immediately and

perma nently restraining Silman PC and M r. Tortorella from taking any further action to demolishor otherwise perform work with respect to the Stacks and/or other components of the CLP .

129. The C oalition has no adequate remedy at law.WHEREFORE, the Coalition demands judgment over a nd against defendants:As to the First Cause of Ac tion:

As to the Second Cause of Action:

As to the Third Cause of A ction:

(i) immediately and permanently restraining all furtherdemolition and construction work with respect to theStacks and/or other components of the CLP; (ii)mandating that defendants return all of the books andother mate rials previously housed in the Stacks to theCentral Library; and (iii) declaring that the CentralLibrary sha ll not undergo any demolition, constructionand/or other work that may affect the structure of thebuilding without consent of PARKS;(i) manda ting that defendants return all of the booksand other ma terials previously housed in the Stacks tothe Central L ibrary; and (ii) declaring that the booksand other m aterials previously housed in the Stacksmay not be removed from the Central Library;(i) immediately and permanently restraining all furtherdemolition and construction work with respect to theStacks and/or other components of the CLP; (ii)mandating that defendants return all of the books andother ma terials previously housed in the Stacks to the

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Michael Hine

00

Central Library; (iii) declaring that the Central Libraryshall not undergo any construction and/or other workthat may affect the structure of the building withoutconsent of PARKS; and (iv) voiding any and allunconsummated transactions pertaining to the CLP inwhich interested Trustees participated;

As to the Fourth Cause of Action: immediately and permanently restraining defendantsSilman PC and Tortorella from taking any furtheraction to demolish or otherwise perform work withrespect to the Stacks and/or other components of theCLP;

all together with costs, legal fees, disbursements, and any and all other and further relief this Courtdeems just and proper.Dated: New York, New York

July 10, 2013

WEISS & HILLER, PCA ttorney s for the Coalition600 Madison AvenueNew Yor ew York 100 2

David P. Rubinstein

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citizens defending libraries complaint filed 7-10-13 against the nypl

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