Judge Denies Developers’ Motion to Dismiss in Children’s Magical Garden Lawsuit

Posted on: November 25th, 2015 at 5:00 am by
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​There’s some positive pre-holiday news coming from the Children’s Magical Garden. The ongoing lawsuit against developers regarding a third of the parkland – first levied last year – is moving forward. A motion to dismiss by the defendant was denied.

First, though, a quick recap of the situation on the ground. Since 1985, the Children’s Magical Garden functioned on three vacant lots near the corner of Stanton and Norfolk Streets. Two of the three parcels were owned by the city (via HPD), while the third remained in private hands. In May 2013, longtime owner Serge Hoyda decided to act on plans to construct a six-story residential project on the land at 157 Norfolk Street (Lot 19). This meant the sudden arrival of a construction crew to erect fencework that effectively bisected the greenspace.

(Not the first controversy here. Public documents show allegations that ownership had cut through the perimeter fence in 1999, purportedly damaging garden constructions.)

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Two months later, HPD balked under community pressure and bequeathed its parcels (Lots 16 and 18) to the Children’s Magical Garden. Hoyda then sold his property to the Horizon Group a short time later. (Horizon is behind the mess of cantilevered condos at 100 Norfolk.)

In March 2014, the activist collective behind the garden filed a lawsuit against Hoyda and Horizon Group in New York Supreme Court seeking ownership of the one non-city-owned parcel – 157 Norfolk Street. The main argument evoked is the state law of “Adverse Possession,” in which a party has the right to ownership if they’ve occupied the property for at least a ten-year period. CMG is operating under that assumption, and acting accordingly in the case. Members of the community garden, spearheaded by Kate Temple-West, argue that Hoyda had all but abandoned the lot to trash and dealers some thirty years ago.

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The case has been languishing in purgatory for many moons, and only now an update. It appears that the defendants’ motion to dismiss was denied on Monday. In other words, they couldn’t get the suit tossed. Instead, Judge Debra A. James sided with the garden to uphold the charges, so the litigation will proceed.

You can read the full brief below:

Cmg Motion to Dismiss Denial

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