11112957

In the Matter of the Application of Jennifer Waller,&& Petitioners/Plainti ffs, For a Judgment Pursuant to Articles 78,30 and 63 of the Civil Practice Law and Rules, and 42 USC 66 1983 and 1988, -againstTHE CITY OF NEW YORK, NEW YORK CITY MAYOR MICHAEL BLOOMBERG, THE NEW YORK CITY POLICE DEPARTMENT, NEW YORK CITY POLICE DEPARTMENT COMMISSIONER RAYMOND KELLY, FIRE DEPARTMENT OF THE CITY OF NEW YORK, FIRE DEPARTMENT OF THE CITY OF NEW YORK COMMISSIONER SALVATORE CASSANO, BROOKFIELD OFFICE PROPERTIES, INC., RICHARD B. CLARK, BROOKFIELD PROPERTIES, INC. CHIEF EXECUTIVE OFFICER, et al., ORDER TO SHOW CAUSE AND TEMPORARY RESTRAINING ORDER Filed: November 15,201 1 Index No.:
/2011

RJI No.:

ORDER TO SHOW CAUSE AND TEMPORARY RESTRAINING ORDER

TO THE ABOVE NAMED RESPONDENTS/DEFENDANTS: Upon the annexedAAfJm&mh of GIDEON ORION OLIVER, ESQ., one of
petitioners'/plaintiffs' attorneys associated with the New York City Chapter of the National

Lawyers Guild, sworn to on November 15, 201 1, with the attached exhibits, and upon good cause being shown, Let the respondentddefendmts show cause before this Court at IAS Part % in Room 20g at the New York County Supreme Court Courthouse ate71

Street in the county, city and

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Supreme Court Records OnLine Library - page 1 of 9

state of New York at f l

:a . M M o n November E,201 1, or as soon thereafter as counsel A

granting the8rehminary relief requested below. rs will be served on petitioyrdplazffs attorney by

may be heard, why an Order should not be entered pursuant to CPLR Articles 78, 30 and 63 and
42 USC F J ~1983 a J $ n/B

@vyY Or

An answer and answe email by - -.M. on

ly papers will be served

by email by -.M.

on

Now

SUFFICIENT CAUSE APPEARING THEREFOR, let service of a copy of this order,

and the papers upon which it is granted, on each of the New York City respondents/defendantnts,

w i d % 4 w ~ y
by delivering true copies o before the /51day or ddw papers $5 by

&dk

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, on or

,201 1, be deemed good and sufficient.

SUFFICIENT CAUSE APPEARING THEREFOR, let service of a copy of this order,

and the papers upon which it is granted, on each of the Brookfield Properties
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respondents/defendants, by delivering true copies n o f

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by

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, on or before the q d a y or

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, 201 1, be deemed

good and sufficient. IT IS FURTHER ORDERED1that,until this matter is heard on the date set forth above, respondentddefendants are prohibited from:

(a)

m a lrlbqPrYk,W1.Lat Evicting lpwfd protesters frornJAb&+kWZuccoti park and/or M S 7~r

(b)

Enforcing t h e m rules published after the occupation began or otherwise

preventing protesters from re-entering the park with tents and other property previously utilized. Dated: New York, New York November 15,2011

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J.S.C.
ATTORN EY S FOR PETITIONERS/PLAINTIFFS:

Gideon Orion Oliver, Esq. 299 Broadway, Suite 806 New York, NY 10007 Margaret Ratner Kunstler, Esq. 14 Seventh Avenue Brooklyn?NY 11213 Michael Ratner, Esq. 666 Broadway, 7th Floor New York, NY 10012 Alan Levine, Esq. 99 Hudson Street, 14hFloor New York, NY 10013 Daniel L. Alterman, Esq. Alterman & Boop, LLP 35 Worth Street New York, NY 10013 Robert J. Boyle, Esq. 299 Broadway, Suite 806 New York, NY 10007 Yetta G. Kurland, Esq. 350 Broadway, Suite 701 New York, NY 10013 Joel R. Kupferman, Esq. 35 1 Broadway, Suite 400 New York, NY 10013 Jane Moisan, Esq. 350 Broadway, Suite 701 3

Supreme Court Records OnLine Library - page 3 of 9

New York, NY 10013 Meghan Maurus, Esq. Of Counsel, Gideon Orion Oliver 299 Broadway, Suite 806 New York, NY 10007 Bina Ahmad, Esq. Of Counsel, Gideon Orion Oliver 299 Broadway, Suite 806 New York, NY 10007

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF THE NEW YORK In the Matter of the Application of Jennifer Waller, d., Petitioners/Plaintiffs, For a Judgment Pursuant to Articles 78,30 and 63 of the Civil Practice Law and Rules, and 42 USC 56 1983 and 1988, -againstRJI No.: THE CITY OF NEW YORK, NEW YORK CITY MAYOR MICHAEL BLOOMBERG, THE NEW YORK CITY POLICE DEPARTMENT, NEW YORK CITY POLICE DEPARTMENT COMMISSIONER RAYMOND KELLY, FIRE DEPARTMENT OF THE CITY OF NEW YORK, FIRE DEPARTMENT OF THE CITY OF NEW YORK COMMISSIONER SALVATORE CASSANO, BROOKFIELD OFFICE PROPERTIES, INC., RICHARD B. CLARK, BROOKFIELD PROPERTIES, INC. CHIEF EXECUTIVE OFFICER, et al.,

Filed: November 15,2011

Index No.:
/201 I

P P

Venue pursuant to CPLR 5 506(b) is set in New York County where the material events took place.

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10 07,
-

couk&f the* of New York, affirms under penalty of erjury as follows: state l ~ J v n ~ pracrdi3 f s /h,, h + p J d J e c b f &h.cKly 1. I am among the attorneys for the Petitioners/Plaintiffs (Petitioners) in this k i t a#

% @

of Petitioners application for a temporary restraining order or a

preliminary injunction against Respondents/Defendants (Respondents).

2.

Petitioners case is meritorious. Liberty Park, a/k/a Zucotti Park, is a traditional public forum located within

3,

walking distance of Wall Street in lower Manhattan.

4.

Liberty Park is a privately owned public space and a special permit plaza

under New York Citys applicable zoning resolutions and special permitting laws and procedures. As such, Brookfields and the Citys authority to limit access to and uses of the park are circumscribed.
5.

For nearly two months, hundreds and thousands of people have peacefully

occupied Liberty Park, exercising their rights protected under the First Amendment of the United States Constitution and the attendant provisions of the New York State Constitution peaceably to express themselves, assemble, and engage in related protected expressive conduct. 6. The core expressive conduct involves a symbolic occupation of a traditional

public forum. The messages being conveyed by the occupiers requireA24-hour occupation and tents, tarps, and the like. The around-the-clock OWS protest has come to symbolize the belief that people have the right to occupy public spaces in order to press the government to meet the needs of its people.
7.

Prior to the occupation, Liberty Park was open 24 hours a day, seven days a week,

Supreme Court Records OnLine Library - page 6 of 9

and there were no rules regarding Liberty Parks use by the public. 8. In fact, New York Citys applicable zoning resolutions, special permitting laws

and procedures, and other rules prohibit Brookfield from closing Liberty Park or unreasonably regulating public use of Liberty Park sua sponte.
9.

After the occupation began, acting ultra vires, Respondents created rules

designed to target the expressive conduct constituting and enabling the occupation. A copy of those rules is attached as Exhibit A. 10.

Upon information and belief, neither Brookfield nor the City has ever enforced

those rules in the past.

11.

Since the beginning of the occupation, the occupiers have consulted regularly

with community representatives and persons with public health expertise t a s u r e that conditions in Liberty Park conform to health, sanitary, and safety standards.
12.

Designated occupiers have been responsible to maintain those standards and each

day persons were assigned to &sure that the park was maintained in a healthy and safe condition.@
13.

At around 1:OOAM on November 15,201 1, agents of the Respondents, including

NYPD agents, surrounded and forcibly took Liberty Park, unlawfully evicting occupiers and destroying and/or seizing their property.

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14.

Attached as Exhibit B is a copy of a notice that was handed out to some in

4 PbUA,

connection with the eviction.

15. 16.

Attached as Exhibit C is a copy of the November 15,201 1 Affidavit of*

Lvi#ay

o(t.(.li.

The eviction was ultra vires, unlawful, unreasonable, arbitrary and capricious, bIia

unconstitutional, and was effected in violation of occupiers and bystanders rights protected dd-d awcd, under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. 17, expeditiously. 3
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&miy& A;
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Plaintiffs will supplement the record with pleadings and other documents

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18.

Affirmant respectfully asks that the Court grant Petitioners' request for a

temporary restraining order andlor preliminary injunction:

(a)

Enjoining the respondents from evicting lawful protesters from Liberty

ParWZuccoti Park;
(b)

Permitting all protesters to re-enter the park with tents and other gear previously

utilized; (c)
(b)

Returning all property seized from protesters; and Granting such further relief as may seem just and proper. There has been no prior application for the relief requested herein.
New York, New York November 15,20 11

@p.
Dated:

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To

Signature (Rule 130-1.1-a)

Print name beneath

Service of a copy of the within is hereby admitted.

Attorney(s) for

Dated:

PLEASE TAKE NOTICE:

U NOTICE OF ENTRV .

that the within is a [certified) true copy o a f duly ErtteTed i the office of the clerk of the within named court on n
NOTICE OF SETTLEMENT

that an order will be presented for settlement to the HON. within named Court, at On at
Supreme Court Records OnLine Library - page 9 of 9

of which the within i a .rue copy s . one of the judges of the

M.

Dated.