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Lawsuit: East Side resiliency project ‘a profound act of discrimination’

BY LINCOLN ANDERSON | Updated Nov. 16, 7:45 p.m.: A new lawsuit in the fight over East River Park charges that Mayor de Blasio and his administration are not promoting equity but — just the opposite — massive discrimination via the contract awarded for the park’s embattled coastal-resiliency project.

Filed last Friday in State Supreme Court by Village District Leader Arthur Schwartz, the lawsuit charges de Blasio and the City of New York with falling “far short” of meeting city, state and federal Minority and Women Owned Business Enterprises (M.W.B.E.) hiring mandates.

The plaintiffs include The Black Institute and its president, Bertha Lewis; the Women Empowerment Coalition of NYC and East River Park ACTION. Lewis was formerly the C.E.O. and chief organizer of ACORN, the national, grassroots social-justice organization, until it disbanded in 2010. The Black Institute is described not as a think tank but rather an “action tank.”

The lawsuit charges that the city wrongly dropped the MWBE hiring percentage to only 16 percent for the contract for the East River Park section of the East Side Coastal Resiliency project, though the city’s normal target is 30 percent. Comptroller Scott Stringer, in his review of the contract, flagged this discrepancy. But, according to the lawsuit, in early August, Mayor de Blasio — “without explanation” and without ever responding to Stringer — went ahead and signed off on the contract, awarding the work to IPC Resiliency Partners over the sole other bidder, Tully.

The suit notes the “bid booklet” for the contract clearly states bids are “subject to applicable provisions of Federal, State and Local Laws and executive orders requiring affirmative action and equal employment opportunity.” Federal M.W.B.E. requirements apply, the suit argues, because the East River Park work would partly be funded by a federal grant of more than $330 million.

“As a result of said actions and conduct,” the lawsuit states, “Respondents de Blasio and New York City has [sic] failed to perform a duty enjoined upon it by law, and has acted in a manner which promotes, rather than ameliorates, discrimination against minorities and women in the construction industry. Given the size of this project, this omission is one of the most profound acts of discrimination in NYC history, made even more profound by the fact that 10,000 NYCHA [New York City Housing Authority] residents, mostly Black and Hispanic, live in buildings facing the footprint of the Project.”

The suit argues that, due to the MWBE violations, the contract never should have been awarded to IPC in the first place.

The suit says the city must now be barred from proceeding with the IPC contract, that the contract must be voided and the project put back up for bid. Otherwise, the litigation says, the plaintiffs — and the MWBE interests they represent — “and the mostly Black and Hispanic residents living across the F.D.R. Drive from the Project, will suffer irreparable injury.”

City Councilmember Carlina Rivera, a strong supporter of the E.S.C.R. project, did not respond to a request for comment about the M.W.B.E. lawsuit.

Tully, meanwhile, has also filed a lawsuit of its own, charging that IPC, as a cobbled-together entity, does not meet the minimum experience requirement for the resiliency work. IPC is a newly formed joint venture of three firms, MLJ Contracting Corp., Posillico Civil, Inc., and CAC Industries, Inc.

The E.S.C.R. project is slated for the East River waterfront between Montgomery Street on the Lower East Side and E. 25th Street, in Kips Bay, just past the northern end of Peter Cooper Village. Under the plan, the existing 60-acre East River Park, between Montgomery and 13th Streets, along with its nearly 1,000 mature trees, would be completely destroyed, then raised 8 feet to 10 feet to put it above the floodplain.

Work for the E.S.C.R. project in East River Park began Nov. 1, but was halted three days later after Schwartz won a temporary restraining order as he appeals a ruling on a previous community lawsuit to block the project. East River Park ACTION is also part of that lawsuit. The T.R.O. remains in effect.

The inspiration for the resiliency project was the serious flooding along the East Side caused by Hurricane Sandy on Oct. 29, 2012. However, plaintiffs in the earlier lawsuit back a previous, more low-impact resiliency plan.

As the MWBE lawsuit notes regarding the prior community lawsuit, “The [plaintiffs] group advocates a plan that provides flood control with minimal destruction of the existing parkland and biodiversity, with a genuine level of input by the local community, including local businesses.”

The Village Sun first reported that Schwartz planned to file a MWBE lawsuit regarding the coastal-resiliency project.

24 Comments

  1. LES3025 LES3025 November 16, 2021

    I’m more sympathetic in theory to this MWBE issue than the alienation lawsuit, but I think it’s unusual to file a bid protest suit months after the contract was approved. The petition says they got the documents in their FOIL request on September 15. Why did they wait two months to file?

    That, along with Schwartz’s connection to the suit and the unrelated rhetoric about the NYCHA residents, makes me doubt that this is based on any actual concern about MWBE targets. Abusing well-intentioned laws to increase the time and cost of infrastructure projects is bad.

    • Tonto Cabrera Tonto Cabrera November 16, 2021

      The contract wasn’t approved by Scott Stringer, the City Controller. Stringer’s objections were overturned by the Mayor and signed the next day.
      Now u guys are worried about NYCHA. Where were u or others when they have no heat and hot water and mold, roaches and rats, the lead paint problem, giving children lung problems and issues with brain functions. Now u are using them to build this plan. Where were u before?

  2. Arthur Schwartz Arthur Schwartz November 16, 2021

    1. We got the Comptroller’s objections in September, but the other documents later. I know you think lawyers just sit down for 5 minutes and churn out lawsuits, but it just ain’t so.
    2. If you think MWBE concern here isn’t genuine, I suggest you call Bertha Lewis at the Black Institute. (I have been her lawyer since 2009). This is a $1.3 billion project with a 16% goal; what could be more real?
    And what is your problem with my connection? Few lawyers take the City on the way I do. And unlike others who do this work, I generally do it pro bono.

    • LES3025 LES3025 November 16, 2021

      I don’t know Bertha Lewis, but I have no reason to doubt her sincerity. Like I said, it’s the involvement of you (and East River Park Action) that I question. You and ERPA don’t want this project re-bid with 30% MWBE participation. You wouldn’t want it re-bid at 100% MWBE participation. You want to stop the project from happening at all. And if your lawsuit is successful that is a reasonably possible outcome.

      I’m familiar with your recent history taking on the city. It’s been to support NIMBY interests and oppose good things like busways and bike lanes. Those are the same interests that are some of the loudest voices opposing ESCR here.

      So, yeah, between the fact that you aren’t interested in actually improving MWBE participation on this project and your history of taking on reactionary local causes, I think there’s good reason to doubt the motives behind this lawsuit.

    • Tonto Cabrera Tonto Cabrera November 16, 2021

      Thank u from the real people of the Lower East Side who care.

  3. Carl Rosenstein Carl Rosenstein November 16, 2021

    So it’s wrong to cut the trees unless women and “people of color” wield the axe?

    This face-off between “climate” communists and equity Marxists resembles the Spanish Civil War when the
    Anarcho-syndicalists battled the Communists while Franco and the royalists peed in their pants.

    The imbeciles of that fractured left not only killed each other, they ushered in 40 years of Franco fascism.

    This is just a sample of what the lunatics now in power will do to “save the planet” and end “racism.” Trees are “racist.” I bet you didn’t know that.

    Welcome to the monkey house.

    • Missy Moore Missy Moore November 16, 2021

      The people who are really behind this lawsuit couldn’t care less about any of that. I’ll bet you any amount that Arthur Schwartz enlisted The Black Institute to sign onto the lawsuit to make it seem like it’s about racial equity when it’s just about grasping at anything to delay the park project as long as possible even, though it will cost us all more money and will drag the project out longer. This is what he does.

  4. Miriam Miriam November 16, 2021

    This is not a NIMBY project as the commenter above says. It’s a project that will not only destroy 1,000 trees, and other wildlife in the park, but will also destroy the only expansive green space on the Lower East Side. Where will the people in the neighborhood go to get shade on a hot summer day, or to play sports, jog, walk, fish, barbecue or just sit and commune with nature? There was another, better plan, approved by Borough President Gale Brewer, after years of neighborhood input. Everyone wants protection from the floods, but there was no reason to have this plan supersede the older plan. If the commenter is so concerned about NIMBYism, why is it that a similar plan would never be approved on the Upper West Side, Battery Park City or Brooklyn Heights? I’m sure they would be shouting from the rooftops, “Not in my neighborhood you don’t!” The only difference is they have the money and clout so that the city will listen.

    • LES3025 LES3025 November 16, 2021

      It’s not a NIMBY project; the people opposing the project are NIMBYs. Happy to clear that up.

      From what I can tell, most of the prominent members of East River Park ACTION (and Arthur Schwartz, for that matter) aren’t residents of the flood zone. Most of them live in the East Village or deeper inland in the Lower East Side (Schwartz lives in the West Village). When the issue was before the community board some time ago, the NYCHA tenants association leadership supported the plan. Some of the community board members who live in the flood zone also ultimately supported the plan. So to have a bunch of people outside the flood zone lead and effort to stop a resiliency project so they can continue to use the park seems pretty selfish to me.

      There were reasons for this plan to supersede the old plan. The old plan ran into issues with Con Ed lines and also didn’t have (or lost) the support of other city agencies. Are those good reasons? I don’t really know. But they’re reasons and they’ve been out there publicly for a while, so it’s silly to say there’s no reason. The fact of the matter is that the city isn’t going back to the old plan. So it’s this plan or nothing and, at this point, it doesn’t really matter if the old plan was better, because doing something is better than doing nothing.

      I hope that when it comes time to do resiliency projects in those other neighborhoods you mention, they don’t run up against the same NIMBY opposition. The city is planning on releasing its FiDi-Seaport master plan later this year. It’s going to be a massive project. So it’s just not right to say that these things don’t happen in other neighborhoods. It’s just happening here first, which is good, because we’re on the front lines.

      • Tonto Cabrera Tonto Cabrera November 16, 2021

        To LES3025: I live in the Lower East Side. I use the park. We use the Amphitheater for events for the people in the Lower East Side. I been going these meeting for 10 years. Before Sandy there was another project plan. After 4 years going to meetings on the post-Sandy plan, there are questions we could ask. Why was this was mandated? I thought the city was broke. Why were there two separate meetings one evening — one only for press and the other for the residents with no press? Why? Because maybe they don’t want the media to hear our screaming at the Parks Department commissioner. I could go on forever. CB 3 and the City Council voted after just seeing a slide show.

        • LES3025 LES3025 November 16, 2021

          I also live in the Lower East Side. I’m glad you’re active in the community and advocating what you believe in. I disagree with you on the merits and think this is an important resiliency plan. My contempt is not for you but for others whose homes aren’t at risk but nevertheless claim to represent the community.

          • I Live Here I Live Here November 17, 2021

            It’s very fashionable right now to insist that ESCR opponents are confused, misinformed, elitist or “not from here.” It’s more fun to attack people than to admit that a lot of locals, including NYCHA residents, want this resiliency project to be designed differently, and are perfectly capable of understanding it well enough to take that position.

      • Trees Are Good Trees Are Good November 18, 2021

        Hey, Mr. Know Everybody Who Is Against ESCR,

        I live a block from the park. We had to evacuate when Sandy cut off our electricity and therefore our water. I’m still against the ESCR plan, which I find brutally destructive and completely insensitive to our community health and needs, especially during Covid, which nobody seems to think about — that we need access to green open space now more than ever. We don’t need to cut down every single tree and blade of grass in a huge park that serves so many. We can have flood control AND mature trees that help offset climate change. The current plan makes NO sense — it takes away everything good, while leaving the FDR Drive. As you say, “Are those good reasons? I don’t really know.” If I were you, I’d take a closer look at what the city is passing off as “resiliency” plans that don’t do anything to mitigate pollution or increase green spaces.

  5. Missy Moore Missy Moore November 16, 2021

    The city’s MWBE guideline is exactly that, a guideline. It’s not a law and no laws are broken if you miss the target, so this suit will fail. This is just another delaying tactic that will serve no purpose except to drag out the project and make taxpayers spend more money and get Arthur Schwartz in the newspaper. Schwartz did exactly the same thing with the 14th Street bus corridor, which is a large improvement to the neighborhood and was only built after several months of useless and pointless delay, making the city jump through some legal hoops. Every time Arthur sues the city over some pointless thing he’s really suing all of us.

    • LES3025 LES3025 November 16, 2021

      +1

  6. Arthur Schwartz Arthur Schwartz November 17, 2021

    What did I sue about in 2020-2021?
    1. I successfully sued to stop a 30% cut in C and F Train service. Very NIMBY.
    2. I successfully sued to stop the Transit Authority from closing subway station booths for a half hour three times a day, and forced them to hire 185 new Station Agents. Very NIMBY
    3. I brought a lawsuit for tenants at 401-409 West 19th Street (NYCHA) when their gas was shut off and they were overrun by rats (last March). Got gas turned on and a court-ordered rodent eradication program. Very NIMBY (no rats in their backyard!)
    4. I brought a class-action suit for tenants at Harlem River Houses (NYCHA) to stop the RAD privatization program, and intimidating efforts to force tenants to sign private-sector leases. (No privatization in my backyard).
    5. I sued successfully to overturn Governor Cuomo’s cancelation of the 2020 Presidential primary elections. (Very, very NIMBY)
    6. I sued successfully to extend the dates that absentee ballots would be accepted in the 2020 primary elections. (Very, very, very NIMBY)
    We can disagree, if you like about 14th Street; I fought it on environmental grounds. But it doesn’t define who I am. I represent hundreds of NYCHA tenants free of charge. I have walked through the housing projects across from East River Park. When I tell people that the park will be closed for 5 to 7 years so the city can turn it into a floodwall, they get pissed. Everyone I talk to. When I say that their tenant association supports it, the use a 4-letter word followed by “them.” I lived at 6th and C for many years and know the area well. My old building had its basement full of water during Sandy. But when I lived there East River Park was a lifesaver, along with the community gardens and Tompkins. There were far less intrusive plans abandoned which had floodwalls which would be equally effective and keep most of the park open during construction.
    And to say that I “found Bertha” to get a plaintiff is a slander. I have been The Black Institute’s lawyer for 11 years (I know, that’s NIMBY too) and have been at many meetings and protests with them about the lack of MWBE goals. And while the City Administrative Code may speak of goals, the State and Federal ones are requirements, and this project blew right past them. De Blasio should back off and let Eric Adams take a fresh look at the whole issue. I know the writers of these reader comments love de Blasio and will miss him, but I won’t. N(o more de Blasio)IMBY.

    • LES3025 LES3025 November 17, 2021

      Arthur, I’m glad you do non-NIMBY work. Maybe you should consider doing that exclusively!

      You’re doing a lot of deflection here and eliding over some key parts of your NIMBY record. You oppose the SoHo/NoHo rezoning (https://media.villagepreservation.org/wp-content/uploads/2021/06/14221736/City-Council-District-3-Questionnaire-Arthur-Schwartz.pdf). In your testimony on that issue, you repeated the false NIMBY talking points that MIH “results in greater gentrification” and “affordable units being unaffordable to all but a few residents of a community.” You also oppose outdoor dining (https://thevillagesun.com/permanent-outdoor-dining-government-by-fiat-without-caution). In the Village Preservation questionnaire on the issue, you again repeated false NIMBY talking points, namely that outdoor dining “adds tremendous amounts of garbage, with a concomitant increase in rats.”

      So you’re on record supporting the NIMBY anti-housing, anti-bus, anti-bike, anti-outdoor dining and anti-ESCR causes. That’s a lot! The common thread across these is that you have sided with a vocal minority of people (car owners, wealthy property owners, etc.) who believe they have a right to dictate what changes happen in their neighborhood and claim that there hasn’t been enough “community” input (when in reality they just mean people aren’t listening to them). That’s the core of NIMBYism and it’s something you clearly support through your words and actions. It isn’t changed just because you also do good stuff like represent NYCHA residents.

      Also, I’d be remiss if I let you get away with claiming that you opposed the 14th Street busway and 12th/13th Street bike lanes “on environmental grounds.” I honestly don’t even know how to respond to it because it’s one of the most outlandish things I’ve ever heard. Cars are a massive environmental problem. Any shift to buses/bikes is a huge win for the environment. This is why people accuse you of being a faux-progressive.

      Lastly, I’ll note that you didn’t answer the point that this lawsuit is pretextual. You don’t want ESCR re-bid with greater MWBE participation and you know well that the likely outcome of a “win” for you is that the project is stopped altogether. This lawsuit isn’t about improving MWBE participation, and it’s offensive and insulting for you to pretend that it is.

  7. Jane Doe Jane Doe November 17, 2021

    Alternative Flood Protection Plan “The project, which started earlier this year, will help capture 55 million gallons of stormwater each year to ease pressure on neighborhood sewers and reduce flooding on walkways, officials said.”
    “The upgrades include building green infrastructure — including permeable concrete sidewalks, permeable asphalt, permeable pavers, subsurface infiltration chambers or rain gardens — to soak up the stormwater, which typically would put pressure on the sewer system and overflow into local waterways like the Gowanus Canal, Newtown Creek, East River or Jamaica Bay.”
    https://patch.com/new-york/bed-stuy/upgrades-bed-stuys-roosevelt-houses-help-flooding

    Alternative Flood Protection Plan: https://bpca.ny.gov/nature-and-sustainability/resiliency/
    “leveraging existing infrastructure – including garden/park walls – to the greatest extent possible in order to create a new line of flood protection along the waterfront…”

    “Con Edison’s Post-Sandy Fortifications Prove Wise $1 Billion Investment For Customers”
    https://www.coned.com/en/ab…
    “The strike back with Con Edison’s four-year Fortifying the Future storm-hardening program began in 2013 with the installation of more than 1,000 “smart” switches on its overhead system, submersible equipment that can withstand flooding, redesigned underground electrical networks and numerous other steps to avoid outages.”

  8. Herman Hewitt Herman Hewitt November 17, 2021

    Glad your are now where our seat of government LES3025, we would certainly ,
    be……..

  9. jane doe jane doe November 17, 2021

    Would the Tully contractor have provided MWBE percentages greater than the firm that won? When you have 2 bids, you take the better bid. Sorry, deal with it.

    • I Live Here I Live Here November 17, 2021

      I’ll let Mr. Schwartz defend his own record. But just want to point out that MWBE was so important to our local City Councilmembers that they made it a condition of their support for this project. I’ve been told that the city signed an agreement promising meaningful MWBE and local jobs, and Stringer’s office flagged the contract for not living up to the agreement. If they’re not doing what they promised to do, why shouldn’t they be held accountable?

    • Jane Doe Jane Doe November 18, 2021

      Hey jane, Jane here.
      “When you have 2 bids, you take the better bid.” …as long as the better bid also meets “city, state and federal Minority and Women Owned Business Enterprises (M.W.B.E.) hiring mandates,” which is what the lawsuit is addressing.
      Unfortunately, none of this addresses the alternative community-supported flood-protection plan and the cover-up of the details of the new plan.

      • Missy Moore Missy Moore November 18, 2021

        What cover-up? Cover up of what exactly? You can find the entire design and the plan for the project online. That Value Engineering Report, which BTW supports the city’s position if you read it, is online with just a few minor areas blacked out. The environmental impact statement is out, anyone can look at it. What do you think is being covered up? Because as long as you keep saying that, you can always oppose the project without having to articulate any real reason other than “it’s a cover-up.”

    • Missy Moore Missy Moore November 18, 2021

      I looked it up online and Tully’s not an MWBE so I doubt it.

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