SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

x CITIZENS DEFENDING LIBRARIES, : EDMUND MORRIS, ANNALYN SWAN, : STANLEY N. KATZ, THOMAS BENDER,: Index No.: 652427/2013 DAVID NASAW, JOAN W. SCOTT, CYNTHIA M. PYLE, CHRISTABEL GOUGH, and BLANCHE WEISEN COOK, Plaintiffs, - against - DR. ANTHONY W. MARX, NEIL L. : RUDENSTINE, BOARD OF TRUSTEES : OF THE NEW YORK PUBLIC LIBRARY, : NEW YORK PUBLIC LIBRARY, ASTOR, : LENOX AND TILDEN FOUNDATIONS, : MICHAEL R. BLOOMBERG, VERONICA WHITE, NEW YORK CITY : DEPARTMENT OF PARKS AND RECREATION, CITY OF NEW YORK, ROBERT SILMAN ASSOCIATES, P.C., and JOSEPH TORTORELLA, Defendants.
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AFFIRMATION IN SUPPORT OF ORDER TO SHOW CAUSE

and-

STATE OF NEW YORK, NEW YORK STATE OFFICE OF PARKS, RECREATION & HISTORIC PRESERVATION (NEW YORK STATE HISTORIC PRESERVATION OFFICE), Nominal Defendants. : x MICHAEL S. HILLER, an attorney duly admitted to the practice of law before the Courts of the State of New York, and aware of the penalties of perjury, hereby affirms as follows pursuant to 2106 of the CPLR:

1.

I am a managing principal of Weiss & Hiller, PC, attorneys for plaintiffs in the above-

captioned action. I submit this Affirmation in Support of plaintiffs' Order to Show Cause for a Temporary Restraining Order and Preliminary Injunction to prevent the destruction of seven stories of architecturally and historically significant book stacks ("Stacks") which provide the principal structural support for the Rose Reading Room in the nationally-landmarked New York Public Library ("NYPL") building located at 42nd Street and Fifth Avenue ("Central Library"). The Stacks also constitute an indispensable component of a specially-designed book delivery system that has efficiently facilitated research at the Central Library for more than a century. The planned elimination of the Stacks threatens to cause irreparable damage to the structural integrity of the Central Library and permanently destroy its position as one of the world's foremost and historic research institutions. 2. The factual basis for the relief requested is reflected in the exhibits annexed hereto

and the accompanying Affidavits of Pulitzer Prize Winning Author Edmund Morris, Pulitzer Prize Winning Author Annalyn Swan, Former Commissioner of the Landmarks Preservation Commission Mildred Schmertz, Preservationist Christabel Gough and Architect Charles Davock Warren, who co-authored Carrere & Hastings, Architects, the preeminent treatise on the original design of the Central Library. The purposes of this Affirmation are to provide an overview of these papers and identify the Exhibits upon which we rely for the relief requested. OVERVIEW 3. This action is brought by a veritable all-star team of scholars, Pulitzer Prize winning

authors, leading historians and eminent preservationists ("Coalition"). 1 This application is further

'Plaintiff Edmund Morris has published six books and is a winner of the Pulitzer Prize and National Book Award. Plaintiff Annalyn Swan has also won the Pulitzer Prize, as well as the National
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supported by two of New York's leading architects. Their collective purpose is to stop the gutting and utter dis-preservation of the Central Library, one of the country's and New York's most precious and iconic landmarks. As shown below, each of the requirements for issuance of a temporary restraining order and preliminary injunction is present. There is a Substantial Likelihood of Success on the Merits of the Coalition's Claims 4. The Coalition has pled four causes of action, the first two of which are addressed in

the Coalition's accompanying Memorandum of Law ("Coalition's Brief'): (i) breach of an explicit, restrictive trust mandate, having its genesis in the founding library bequests and being an integral part, inter alia, of the NYPL, Astor, Lenox and Tilden Foundations charter (the "NYPL Charter"), which the general public and the Coalition, as expressly intended beneficiaries, have the right to enforce; and (ii) breach of a certain contract, dated June 2, 1978 (the "1978 Agreement"), among the

Critics Circle Award for Biography and the Los Angeles Times Biography Award. Plaintiff Dr. Stanley N.
Katz is President Emeritus of the American Council of Learned Societies, a Professor of History at Princeton, a recipient of the McCreight Award for Distinguished Service to the Humanities, has published and edited dozens of books and articles and is among the leading historians of our time. Plaintiff Professor Thomas Bender is a Professor of Humanities at New York University, is the author and editor of 14 books and countless articles, and is the recipient of the Frederick Jackson Turner Award (History). Plaintiff Professor David Nasaw, the Arthur Schlessinger, Jr. Professor of History at the Graduate Center of the City University of New York ("CUNY"), is a two-time Pulitzer Prize finalist and has published multiple books and articles of scholarly merit. Plaintiff Professor Joan Scott is a member of the faculty at Princeton, the founding director of the Pembroke Center for Teaching and Research on Women at Brown University, has written multiple books and is the winner of, among other awards, the Herbert Baxter Adams Prize, the Joan Kelly Memorial Prize, the Hans Sigrist Award for Outstanding Research in Gender Studies and the Nancy Lyman Roeler Prize. Plaintiff Dr. Cynthia Munro Pyle is a distinguished professor, scholar and author, and the founder of the Renaissance Study Program at CUNY. Plaintiff Dr. Blanche Weisen Cook is a Distinguished Professor of History and Women's Studies at John Jay College of Criminal Justice, is the preeminent scholar on the study of Eleanor Roosevelt, and has published three books and more than 40 articles for scholarly journals. Plaintiff Christabel Gough is one of New York City's leading preservationists and is the Secretary of the Society for Architecture of the City. Plaintiff Citizens Defending Libraries ("Citizens") is one of New York City's largest member support groups dedicated to protecting libraries from demolition and exploitation. Recently, Citizens collected more than 13,000 signatures contesting the plans devised by defendants herein.

NYPL, the City of New York ("City"), and the New York State Department of Parks and Recreation ("PARKS"), under which the NYPL and the City agreed, inter alia, not to make any structural modifications to the Central Library without the prior approval of PARKS, which the general public and the Coalition also have the right to enforce as expressly intended beneficiaries. 5. As shown below and in the annexed Exhibits and Affidavits, defendants Dr. Anthony

Marx (President and CEO of the NYPL), Neil Rudenstine (Chairman of the NYPL's Board of Trustees), the NYPL Board of Trustees ("Board of Trustees"), Robert Silman Associates, PC (the structural engineering firm retained by the NYPL to remove the Stacks and books) ("Silman PC"), and Joseph Tortorella (President of Silman PC) (collectively, the "Anti-Preservationist Defendants"), are engaged in a systemic plan (the Central Library Plan, or "CLP") to remove the Stacks and the millions of books they contain from the Central Library in direct violation, inter alia, of the NYPL Charter and the 1978 Agreement. In furtherance of the CLP, millions of books already have been, and going forward will continue to be, sent to remote offsite storage facilities in New Jersey and elsewhere, stripping the Central Library of its principal resource and purpose. (i) 6. Breach of the Restrictive Trust Mandate The clear mandate of the NYPL's founding Astor, Lenox, and Tilden Trusts (the

"Three Library Companies"), expressly requires, inter alia, that the books now in the possession of the NYPL, as successor-in-interest, always remain in the Central Library to be used by readers there. This restrictive mandate, referred to herein and in the accompanying papers as the NYPL Charter, has been articulated by the NYPL's Board of Trustees numerous times over the course of the past century, and has been carried forward and incorporated expressly or by reference into: (1) a certain Agreement of Consolidation, dated May 23, 1895, by which the Three Library Companies were 4

merged into the NYPL (Exh. 1); (ii) an address by the NYPL's then-Board of Trustees to the City's then-Mayor Strong, in which the NYPL appealed to the City for land and funds to construct a library of sufficient size to house the millions of books required to be kept on premises ("Address") (Exh. 5); (iii) the NYPL's lease with City for the Central Library building, dated December 8, 1897 ("Lease") (Exh. 2); and (iv) the 1978 Agreement (Exh. 3). 6. Yet, as already noted, the NYPL has begun implementing the CLP in contravention

of the NYPL Charter by sending millions of the books previously shelved in the Stacks to remote offsite storage facilities. Moreover, within approximately the past two months, the NYPL has apparently obtained no fewer than seven building permits from the DOB (i.e., from the City, not PARKS, a State governmental body), including two dated June 4, 2013, and June 20, 2013, respectively, permitting the NYPL and Silman PC to make prohibited structural modifications to the Central Library in connection with the removal of the Stacks. (see Exh. 14 hereto). If the Stacks were to be removed, the books can never be returned. 7. The Coalition, as well as the general public, have standing to seek redress for this

egregious breach of trust, and, in light of the clear trust mandate contained in the NYPL Charter, they are likely to succeed on the merits. See Complaint 11106-112; Coalition's Brief at 15. (ii) Breach of the 1978 Agreement which Prohibits Structural Alteration and Requires the NYPL to Protect the Historical Integrity of the Central Library Removal of the books from the Central Library was effectuated in preparation for

8.

another serious and irreparable breach -- the imminent demolition and removal of the Stacks which serve as both: (1) a critical structural skeleton for the building and (2) an indispensable feature of the book delivery system specifically designed for use at the Central Library (Warren Aff. 10). As 5

shown below, aside from the shortsightedness of the Anti-Preservationist Defendants' CLP, removal of the Stacks would directly violate a certain 1978 agreement entered into between the State, City and NYPL ("1978 Agreement"), pursuant to which no structural changes may be made to the Central Library in the absence of consent from the State of New York (Exh. 3, 7). And, as further shown below, there is no evidence that the State has ever provided such consent. Indeed, the evidence thus far reflects that the opposite is true -- i.e., that the State has thus far deprived the AntiPreservationists of its consent. Specifically,
Q11 June

27, 2013, the State Assembly convened its

Standing Committee on Libraries for a hearing (which I attended) to investigate potential improprieties associated with the CU', including and especially the NYPL's effort to remove the Stacks. The State Committee did not approve the CLP at the hearing. Because the State has evidently not consented, demolition and removal of the Stacks cannot proceed. 9. Furthermore, the 1978 Agreement requires the NYPL and City "to protect and

preserve the historical integrity of features, materials, appearance, workmanship and environment" of the Central Library" (Exh. 3, 4). Removal of the Stacks, which, as reflected in the Affidavit of Charles Warren, are critical to the historical integrity of the book delivery feature of the Central Library, not to mention its materials, appearance, workmanship and environment, would violate this critical provision of the 1978 Agreement. 10. Notwithstanding the foregoing, the Anti-Preservationist Defendants, in breach of the

Library Trusts, Consolidation Agreement and 1978 Agreement, have approved the entirety of the CLP (including demolition and removal of the Stacks and displacement of the books). 2

2 The CLP also includes plans to sell off the Mid-Manhattan Branch and the Science Industry and Business Library ("SIBL") to real estate interests. This is in addition to the Anti-Preservationist Defendants' 2008 sale of the beloved Donnell Library which was also sold to real estate investors who
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11.

As set forth supra, the books have already been displaced to remote locations,

including Princeton, New Jersey, preventing authors, historians and other scholars from completing their work (Morris Aff. 18-9; Swan Aff. r9-10). And, as of this date, documents from the Department of Buildings ("DOB") reflect that the Board of Trustees has obtained no less than seven permits, two of which specifically call for structural alterations to the Central Library (Exh. 14). In short, the Trustees have violated the Library Trusts and Consolidation Agreement by impermissibly removing the books from the Central Library, and are threatening imminently to breach the 1978 Agreement by destroying the irreplaceable Stacks. The Coalition is entitled to an injunction on this basis alone. (iii) Negligence/Nuisance 12. Because the Stacks provide the principal structural support for the Rose Reading

Room -- an enormous room -- one would expect that the Central Library would be subject to closure during demolition and construction. But it won't be. The Anti-Preservationist Defendants plan to remove the principal structural support for one of the largest reading rooms in the world while it is fully occupied by hundreds of library visitors. Defendant Joseph Tortorella, the NYPL 's own chief engineer, has admitted that removal of the Stacks while the Rose Reading Room is in full use is like "cutting the legs off the table while dinner is being served" (Exh. 8). Given the particular circumstances under consideration, Mr. Tortorella's metaphor constitutes a gross understatement, since the Rose Reading Room is an enormous, architecturally-significant room which, at the time of demolition and construction, would be filled with hundreds of people -- not merely plates and

promptly renovated the building and are now in the process of selling off its component parts for millions in profit. 7

food. As explained by Mildred Schmertz, an architect and former Commissioner of the Landmarks Preservation Commission, demolishing and removing the Stacks while the Rose Reading Room is in full use is like "replacing the foundation of Yankee Stadium while a World Series game is played in front of a full audience of spectators" (Schmertz Aff. 9). While it is not necessarily impossible to conduct such work, the risks are considerable" (id.) -- a conclusion echoed by eminent Architect Charles Davock Warren (Warren Aff. 19-10). Demolition and removal of the Stacks while the Central Library is in full use raises serious safety concerns to the thousands of users of the Rose Reading Room and must be enjoined. Removal of the Stacks and the Resulting Permanent Displacement of Books Previously Shelved There Would Cause Irreparable Harm 13. Removal of the Stacks would cause irreparable harm to the Central Library and all

of those who use it as an effective research institution. The Stacks were constructed with Carnegie Steel, comprised of particularly sturdy properties that have endured for more than a century (Warren Aff. 8). 14. The Affidavits of Mr. Morris and Ms. Swan confirm that elimination of the Stacks

and the permanent displacement of the books previously shelved there severely impair the ability of, if not render it impossible for, scholars and authors to conduct research at the Central Library (Morris Aff. 8; Swan Aff. 10). As a result of the loss of the books, each day scholars are dissuaded from using the Central Library as a research institution; many have likely decided to stop using the Central Library altogether, as it is no longer usable to conduct quality research (Morris Aff. 8; Swan Aff. 10). 15. Worse, the books themselves, many of them old and exceedingly rare, are now subject

to repeated instances of being requested, removed from their shelf spaces in New Jersey, indelicately packed into boxes with scores of other books, loaded onto carts, dumped into vans, and transported back and forth to and from New Jersey and New York. As explained by Ms. Morris and Ms. Swan, this practice has already led to damaged and lost books which are irreplaceable. The Balance of the Equities Weighs in Favor of Granting Injunctive Relief 16. In the absence of a restraining order and preliminary injunction: (i) the Central

Library, one of the world's most venerable research institutions and iconic architectural masterpieces, would be irreparably altered; (ii) scores of irreplaceable and rare books would be destroyed or lost; (iii) scholars and authors would be unable to conduct their research; and (iv) the Central Library would cease to be the research institution that has, for the last century, served as a beacon of history and learning. By contrast, the grant of the Coalition's requested relief would cause defendants absolutely no harm, since, under the Library Trusts, Consolidation Agreement and 1978 Agreement, they have no right to perform the work in the first instance. Moreover, as defendant Marx, President and Chief Executive Officer of the NYPL testified before the State Assembly's Standing Committee on Libraries: the NYPL has no established budget for the CLP; the NYPL has not even prepared, much less obtained approval for, any engineering plans for whatever structure is to replace the Stacks that the Anti-Preservationist Defendants are rushing to destroy; 17. Moreover, counsel for the Anti-Preservationist Defendants recently represented to

another group of preservationists that the work would not proceed until the later of: (i) August 1, 2013; and (ii) completion of an environmental assessment (Letter, Exh. 16). This is, in effect, a

promise to restrain demolition and construction -- i.e., a temporary restraining order. The AntiPreservationist Defendants also announced to the New York Daily News that they would not proceed with any components of the CLP until all approvals were obtained (Exh. 17). These promises reflect that there is no imminent need to demolish the Stacks and perform other work in connection with the CLP. 18. One might question why the Coalition proceeded with this Order to Show Cause in

the face of the promises above. The answer lies in the provisions of CPLR 2104, which plainly state that an agreement between counsel is non-binding unless it is in the form of a signed stipulation or made in open court. Here, the Anti-Preservationist Defendants have made announcements, but these hardly constitute a binding agreement. Prior to filing this Order to Show Cause, we asked the AntiPreservationists Defendants' attorneys for a binding stipulation in this regard.' 19. Plainly, the balancing of the equities weighs heavily in favor of granting a preliminary

injunction and temporary restraining order. The potential loss of the Stacks and permanent displacement of the books, coupled with the daily harm that would be caused to researchers and scholars unable to use the Central Library, far outweighs the Anti-Preservationist Defendants' apparent zeal to demolish the Stacks given that the Anti-Preservationist Defendants have not even prepared plans for their replacement. CONCLUSION 20. Eminent scholars, authors, and preservationists of every stripe have condemned the

CLP as diametrically opposed to the objects and purposes of the Central Library. hi the words of

3 Shortly before filing, Anti-Preservationist Defendants' counsel, Richard Leland, expressed a willingness to enter into such a stipulation, subject to his review of the written document.

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the late Ada Louise Huxtable, the Dean of New York Architecture critics, the CLP "is a plan devised out of a profound ignorance of, or willful disregard for, not only the library's original concept and design, but also the folly of altering its meaning and mission and compromising its historical and architectural integrity. You don't 'update' a masterpiece" (Ada Louise Huxtable, "Undertaking its Destruction," Wall Street Journal, December 3, 2012) (Exh. 9). 21. Similarly, The New York Times Architecture critic Michael Kimmelman has

dismissed the proposed newly designed Central Library as having "all the elegance and distinction of a suburban mall" (The New York Times, January 29, 2013) (Exh. 8), while Bloomberg News Architecture critic James Russell described it as "thin architectural gruel" (James Russell, "N.Y. Public Library, Norman Foster Evict a Million Books," Bloomberg News, December 19, 2012) (Exh. 10). 22. Until the recent announcements by the Anti-Preservationist Defendants and their

counsel, the NYPL and the Trustees seemed to be focused on a race to demolish and remove the Stacks as quickly as possible, ostensibly before anyone has the opportunity challenge the CLP. Now that the Anti-Preservationists Defendants, in the face of bad publicity, have promised not to proceed with the work until the CLP can be properly vetted, we insist that they stand behind their promise with a binding agreement. The Coalition, and indeed all New Yorkers, are entitled to nothing less. EXHIBITS 23. The following documents are annexed hereto as Exhibits: Exh. 1 Exh. 2 Exh. 3 Agreement of Consolidation December 8, 1897 Lease and Agreement 1978 Agreement 11

Exh. 4 Exh. 5

NYPL Bulletin March 25, 1896 Board of Trustees' Address to the Hon. William L. Strong Amendment of City Charter May 19, 1897 Act January 29, 2013 New York Times Article December 3, 2012 Wall Street Journal Article December 19, 2012 Bloomberg News Article Photographs of the Stacks Photographs of the Rose Reading Room New York Public Library's website Building permits from the DOB Complaint Letter from counsel for the Anti-Preservationist Defendants New York Daily News Article

Exh. 6 Exh. 7 Exh. 8 Exh. 9 Exh. 10 Exh. 11 Exh. 12. Exh. 13 Exh. 14. Exh. 15 Exh. 16. Exh. 17. ** ** 24. 25.

Plaintiffs have not previously requested this relief in this or any other Court. I contacted all defendants through counsel regarding this application and informed

them that I would be appearing at 60 Centre Street at 10:00 AM on July 12, 2013 to request a temporary restraining order and preliminary injunction on behalf of the Coalition. Dated: New York, New York July 11, 2013

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