I am a partner with the law firm of Troutman Pepper Hamilton Sanders LLP, attorneys for Redeemer Presbyterian Church East Side.

As the Court is aware, a TRO is a drastic remedy with the potential to exact extreme damage to the non-movant before the merits of a motion are even briefed, argued or decided.

Here, Respondent has failed to demonstrate any immediate and irreparable injury for the reasons set forth herein and summarized as follows:      Respondent’s claim that Petitioner has refused to provide an appropriate indemnity is false.

As more fully set forth herein, Respondent’s TRO request should be denied, and Petitioner should be granted sufficient time to put in opposition papers to remaining portions of the instant OSC.

Such undertaking will cover Petitioner’s contractual damages incurred during one (1) month if Petitioner is not allowed to install the Adjacent Property Protections and continue construction of its Project.

Petitioner proceeds by Order to Show Cause seeking an Order “granting Petitioner a limited license, pursuant to RPAPL 881, to enter the property known as 160 East 91st Street, New York, New York, … to (a) install, maintain, and remove temporary overhead protection in the form of a sidewalk bridge along the wall of the front façade of the adjacent property as required by [Department of Buildings] for a period of sixteen (16) months commencing on the date that this Court issues its license …, (b) to install, maintain and remove three (3) monitors on the adjacent property in the locations previously agreed to by the parties as required by [Department of Buildings] for a period of eight (8) months commencing on the date that this Court issues its license, (c) to install, maintain and remove temporary overhead protection located in certain portions of the rear yard of the adjacent property that is located in certain portions of the rear yard of the adjacent property that is located within 20 feet of Petitioner’s premises, as required by [Department of Buildings] for over a period of sixteen (16) months commencing on the date that this Court issues its license …, (d) to install, maintain and remove temporary lay down roof

protections on certain portions of the roof of the adjacent property located within 20 feet of the Petitioner’s premises, as required by [Department of Buildings], for a period of sixteen (16) months commencing on the date that this Court issues it license …, (e) install, maintain and remove temporary window and fire escape protection over windows and a fire escape, located on the lot line facing façade as required by [Department of Buildings] for a period of sixteen (16) months commencing on the date that this Court issues its license … and (f) install, maintain, and remove temporary horizontal netting located in the airspace above the adjacent property as required by [Department of Buildings] for a period of sixteen (16) months commencing on the date that this Court issues its license” (see NYSCEF Doc. No. 14).

Petitioner has provided the relevant documents and affidavits that show the necessity for a license to enter adjacent property to construct safety barricades and structures.

It is now ORDERED that Petitioner – Redeemer Presbyterian Church East Side is granted a license, pursuant to RPAPL 881, to enter the property known as 160 East 91st Street, New York, New York, in order to (a) install, maintain, and remove temporary overhead protection in the form of a sidewalk bridge along the wall of the front façade of the adjacent property as required by [Department of Buildings] for a period of sixteen (16) months commencing on the date that this

Court issues its license, (b) to install, maintain and remove three (3) monitors on the adjacent property in the locations previously agreed to by the parties as required by [Department of Buildings] for a period of eight (8) months commencing on the date that this Court issues its license, (c) to install, maintain and remove temporary overhead protection located in certain portions of the rear yard of the adjacent property that is located in certain portions of the rear yard of the adjacent property that is located within 20 feet of Petitioner’s premises, as required by [Department of Buildings] for over a period of sixteen (16) months commencing on the date that this Court issues its license, (d) to install, maintain and remove temporary lay down roof protections on certain portions of the roof of the adjacent property located within 20 feet of the Petitioner’s premises, as required by [Department of Buildings], for a period of sixteen (16) months commencing on the date that this Court issues it license, (e) install, maintain and remove temporary window and fire escape protection over windows and a fire escape, located on the lot line facing façade as required by [Department of Buildings] for a period of sixteen (16) months commencing on the date that this Court issues its license, and (f) install, maintain, and remove temporary horizontal netting located in the airspace above the adjacent property as required by [Department of Buildings] for a period of sixteen (16) months commencing on the date that this Respondents cross motion is Denied.

Petitioner proceeds by Order to Show Cause seeking an Order “granting Petitioner a limited license, pursuant to RPAPL 881, to enter the property known as 160 East 91st Street, New York, New York, … to (a) install, maintain, and remove temporary overhead protection in the form of a sidewalk bridge along the wall of the front façade of the adjacent property as required by [Department of Buildings] for a period of sixteen (16) months commencing on the date that this Court issues its license …, (b) to install, maintain and remove three (3) monitors on the adjacent property in the locations previously agreed to by the parties as required by [Department of Buildings] for a period of eight (8) months commencing on the date that this Court issues its license, (c) to install, maintain and remove temporary overhead protection located in certain portions of the rear yard of the adjacent property that is located in certain portions of the rear yard of the adjacent property that is located within 20 feet of Petitioner’s premises, as required by [Department of Buildings] for over a period of sixteen (16) months commencing on the date that this Court issues its license …, (d) to install, maintain and remove temporary lay down roof

Motion No. 001 protections on certain portions of the roof of the adjacent property located within 20 feet of the Petitioner’s premises, as required by [Department of Buildings], for a period of sixteen (16) months commencing on the date that this Court issues it license …, (e) install, maintain and remove temporary window and fire escape protection over windows and a fire escape, located on the lot line facing façade as required by [Department of Buildings] for a period of sixteen (16) months commencing on the date that this Court issues its license … and (f) install, maintain, and remove temporary horizontal netting located in the airspace above the adjacent property as required by [Department of Buildings] for a period of sixteen (16) months commencing on the date that this Court issues its license” (see NYSCEF Doc. No. 14).

Petitioner has provided the relevant documents and affidavits that show the necessity for a license to enter adjacent property to construct safety barricades and structures.

It is now ORDERED that Petitioner – Redeemer Presbyterian Church East Side is granted a license, pursuant to RPAPL 881, to enter the property known as 160 East 91st Street, New York, New York, in order to (a) install, maintain, and remove temporary overhead protection in the form of a sidewalk bridge along the wall of the front façade of the adjacent property as required by [Department of Buildings] for a period of sixteen (16) months commencing on the date that this

Page 5 of 6 Court issues its license, (b) to install, maintain and remove three (3) monitors on the adjacent property in the locations previously agreed to by the parties as required by [Department of Buildings] for a period of eight (8) months commencing on the date that this Court issues its license, (c) to install, maintain and remove temporary overhead protection located in certain portions of the rear yard of the adjacent property that is located in certain portions of the rear yard of the adjacent property that is located within 20 feet of Petitioner’s premises, as required by [Department of Buildings] for over a period of sixteen (16) months commencing on the date that this Court issues its license, (d) to install, maintain and remove temporary lay down roof protections on certain portions of the roof of the adjacent property located within 20 feet of the Petitioner’s premises, as required by [Department of Buildings], for a period of sixteen (16) months commencing on the date that this Court issues it license, (e) install, maintain and remove temporary window and fire escape protection over windows and a fire escape, located on the lot line facing façade as required by [Department of Buildings] for a period of sixteen (16) months commencing on the date that this Court issues its license, and (f) install, maintain, and remove temporary horizontal netting located in the airspace above the adjacent property as required by [Department of Buildings] for a period of sixteen (16) months commencing on the date that this Respondents cross motion is Denied.

Roomi , ofthis Court, to be held at the Courthouse, 69- Centre Street, New York, N.Y., on the\@_ day of sry ; mp, at

“Mm \O o’clock, or remotely via Microsoft Teams, or as soon thereafter as counsel may be heard, why an Order should notbe entered: (1) granting Petitioner, withoutfurther interruptionordelay,a license to enter upon and access the properties located at 701 Seventh Avenue, 717 Seventh Avenue, 719 Seventh Avenue,, and 150 West 48" Street, New York, New York (the “Adjacent Properties”) in order to (i) conduct an ‘existing conditions pre- construction survey (the “Survey”) ofthe Adjacent Properties;(ii) install, maintain and remove, as applicable and necessary, temporary monitoring equipment, temporary overhead protection, temporary roof protection, temporary window protection, and waterproofing(collectively, the “Protection Wor ”’ at the Adjacent Properties in accordance with RPAPL§ 881 and the New York City Building Code (the “Code”) §§ 3309.1, 3309.2, 3309.3, 3309.4.4, 3309.16, 3307.6.2, 3307.6.3, 3309.10, 3309.9, and 3309.14; (2) declaring that Respondents have unreasonably conditioned, denied, and/or refused Petitioner access to the Respondents’ Adjacent Properties for the limited and temporary purpose of complying with the Code; (3) declaring that Respondents shall be responsible for any and all damage and liability to the Adjacent Properties that mayarise out of Respondents’ failure to grant Petitioner access to the Adjacent Properties in accordance with RPAPL § 881 and Code §§ 3309.2; (4) prohibiting Respondents from interfering with Petitioner’s planned Survey, and Protection Work; and (5) granting such further and other relief as this Court deems just, proper and equitable.

IT IS FURTHER ORDEREDthat answering papers, ifany,in opposition to the motion brought on by this Order to ShowCause be served via NYSCEF on counselfor Petitioner by if Yetarmn\an/a3 ©= be sl alTT

2022; and IT IS FURTHER ORDEREDthatreply papers,ifany, in further support ofthe to the motion brought on by this Order to Show Cause be served via NYSCEF on counsel for Respondents by Rae CIN , 202%, an Pay?

r ITIS FURTHER ORDEREDthata copyofthis Orderandall the papers upon whichit is based mart Win Grol ob Owl qva in _\"" day of upon be served upon Respondents by Teague] \ mw to ry / , 2022, which shall be deemed good andsufficient service thereof.

If none, leave blank.

719 SEVENTH TIC 2 OWNER LLC, and TMHCR 48th

UPON reading and filing the annexed Verified Petition dated November 28, 2022, Memorandum of Law in Support of the Verified Petition dated November 28, 2022, Affidavit of Carl Bradley Cronk, A.I.A., affirmed to and dated November 28, 2022, Emergency Affirmation of Eli Raider, Esq. affirmed to and dated November 28, 2022, and the exhibits annexed thereto, and upon all prior proceedings had herein,

Part _____, Room_____, of this Court, to be held at the Courthouse, 60 Centre Street, New York, N.Y., on the ____ day of __________, 2022, at

_____o’clock, or remotely via Microsoft Teams, or as soon thereafter as counsel may be heard, why an Order should not be entered:: (1) granting Petitioner, without further interruption or delay, a license to enter upon and access the properties located at 701 Seventh Avenue, 717 Seventh Avenue, 719 Seventh Avenue,, and 150 West 48th Street, New York, New York (the “Adjacent Properties”) in order to (i) conduct an existing conditions pre- construction survey (the “Survey”) of the Adjacent Properties; (ii) install, maintain and remove, as applicable and necessary, temporary monitoring equipment, temporary overhead protection, temporary roof protection, temporary window protection, and waterproofing (collectively, the “Protection Work”) at the Adjacent Properties in accordance with RPAPL § 881 and the New York City Building Code (the “Code”) §§ 3309.1, 3309.2, 3309.3, 3309.4.4, 3309.16, 3307.6.2, 3307.6.3, 3309.10, 3309.9, and 3309.14; (2) declaring that Respondents have unreasonably conditioned, denied, and/or refused Petitioner access to the Respondents’ Adjacent Properties for the limited and temporary purpose of complying with the Code;

(3) declaring that Respondents shall be responsible for any and all damage and liability to the Adjacent Properties that may arise out of Respondents’ failure to grant Petitioner access to the Adjacent Properties in accordance with RPAPL § 881 and Code §§ 3309.2; (4) prohibiting Respondents from interfering with Petitioner’s planned Survey, and Protection Work; and (5) granting such further and other relief as this Court deems just, proper and equitable.

PLEASE TAKE NOTICE that the attached is a true and correct copy of the Decision and Order on Motion No. 004 of the Hon.

Plaintiff brings the instant action alleging private and public nuisance causes of action as a result of a lawful sidewalk shed erected by defendant.

Defendant moves to dismiss the complaint pursuant to CPLR § 3211(a)(1), (5) and (7).

favorable inference” and “determine[s] only whether the facts as alleged fit within any cognizable legal theory” (Gottlieb v Wynne, 159 AD3d 799, 800 [2nd Dept 2018]).

While the Court agrees with plaintiff that the erection of a lawful sidewalk shed does not automatically bar claims for legitimate causes of

Plaintiff brings the instant action alleging private and public nuisance causes of action as a result of a lawful sidewalk shed erected by defendant.

Defendant moves to dismiss the complaint pursuant to CPLR § 3211(a)(1), (5) and (7).

favorable inference” and “determine[s] only whether the facts as alleged fit within any cognizable legal theory” (Gottlieb v Wynne, 159 AD3d 799, 800 [2nd Dept 2018]).

While the Court agrees with plaintiff that the erection of a lawful sidewalk shed does not automatically bar claims for legitimate causes of

The Court has reviewed plaintiff’s remaining contentions and finds them unavailing.

PLEASE TAKE NOTICE that the attached is a true and correct copy of the Decision and Order on Motion No. 003 of the Hon.

Lyle E. Frank, of the Supreme Court of the State of New York in the above-referenced action, dated November 7, 2022 2022, which was entered by the New York County Clerk on November 7, 2022.

To: ALL COUNSEL OF RECORD

The following e-filed documents, listed by NYSCEF document number (Motion 003) 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 92, 93, 94 were read on this motion to/for

Upon the foregoing documents, the motion for re-argument is denied.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 92, 93, 94 were read on this motion to/for

Upon the foregoing documents, the motion for re-argument is denied.

Upon the foregoing documents, the motion to renew and reargue is denied.

The Court notes that the motion to renew centers on the Court’s finding that the petitioner failed to exhaust its administrative remedies before bringing the instant action.

While that may constitute new evidence, it does not change the Court’s prior determination of lack of timeliness of challenging a prior permit nor that all administrative remedies were exhausted.

The motion to reargue appears to be as to the Court’s alternate basis for ruling for the respondents in the prior Decision and Order, in that the Court found that the petitioners failed to make out prima facie entitlement to the relief sought in the initial order to show cause.

THE NEW YORK CITY DEPARTMENT OF BUILDINGS ET AL Motion No. 003

wa | UPONthe Affirmation of Nicholas M.David dated oeerer 41, 2022, theAffidavit ofa Brian Stanton sworm to OctoberYoon.2022, the AttidavitofKhalid{aAlgende, P.E., sworn to October “7, 2022, the Memorandum ofLaw dated October 11, 2022, the exhibits annexed to the foregoing, and all the papers and proceedingsin this proceeding; Ss LET the Respondent show cause at Part&3 Room?

the date that this Court issuesits license, (c) to install, maintain and - remove temporary overhead protection located in certain portions of the rear yard of the Adjacent Property that is located within 20 ‘feet of Petitioner’s premises, as required by DOBfor over a period of sixteen (16) months commencing on the date that this Court issues its license or February 1, 2023, whichever is later, (d) to install, maintain and remove temporary lay down roof protections on certain portions of the roof of the Adjacent Property located within 20 feet of the Petitioner’s premises, as required by DOB,for a period of sixteen (16) months commencing on the date that this Courtissuesits license or February 1, 2023, whicheverislater, (e) install, maintain and remove temporary window andfire escape ' protection over windows and a fire escape locatedon the lot line facing fagade (facing Petitioner’s premises) as required by DOB for a period of sixteen (16) months commencing on the date that this Court issues its license or February 1, 2023, whicheveris.

later, , -and (f) install, maintain, and remove temporary horizontal netting located in the airspace above the Adjacent Property as required by DOBfor a period of sixteen (16) months commencing on the date that this Court issues its license or February 1, 2023, whicheveris later; with all of the foregoing as more specifically set forth in the Project’s site safety plan (a copy of which is annexed as Exhibit A to the Affidavit of Khalid Algende, P.E. that.

was submitted in support hereof); On the First Count in the Petition, granting a money judgment in favor of Petitioner and against Respondent, pursuant to RPAPL § 881, in the amountof the attorneys’ fees incurred by Petitioner in connection with this proceeding, in an amountto be determined at trial; Onthe Second Countin the Petition, declaring that the obligation — to protect Respondent’s Adjoining Property during the construction phase of the Project to.

ORDERED,‘that service of a copy of this Order to Show Cause, alongwith“the papers gues Pye ane uponwhich it wasas grantedhall be served on Respondent bypUS Postal Service Express Mail to Tane Waterman & Wurtzel,.P.C., 120 Broadway, Suite 948, New York,New York 10271, Attn: im bybepre Hyun 2-5__2Sahg Gettl ; 2822, Leonard Khandros/‘and that such delivery shall be deemed good and sufficient service thereof: fee and it is further ORDERED,that opposition papers, if any, shall be served by Respondent upon counsel for Petitioner,by electronic filing thereof with the NYSCEF, on or before the “022; and itiis further pS OWE Lb?

Petitioner contends that the respondents’ approval of the subject protection plan, will create a dangerous condition on the sidewalk that abuts its premises, 4 Times Square.

1 The Court notes that there is the parallel action filed by Petitioner against the developer, 4TS II LLC v. Jamestown OTS, L.P. (Index No. 156318/2022) (the “Developer Action”).

Even assuming arguendo that this Court were to find that additional administrative remedies would be futile, petitioner has simply failed to establish its prima facie entitlement to the relief sought.

Preliminarily, the Court notes that the subject sidewalk shed that is being constructed pursuant to the protection plan does not abut petitioner’s property.

Moreover, the Court finds it highly unlikely that respondent could meet their burden due to the complexity of the One Times Square project, as discussed above.2 Accordingly, it is hereby ADJUDGED that the petition is denied.