BY SARAH FERGUSON | Members of the Children’s Magical Garden filed a lawsuit in state Supreme Court on Monday to reclaim the portion of the garden that is now slated for development. They say their 30-year occupation of the lot at 157 Norfolk St. gives them a legal claim of “adverse possession.”
They are asking the court to name C.M.G. as the lot’s rightful owner and seeking damages against its previous owner, developer Serge Hoyda, whose workers fenced off the parcel last May, effectively dividing this Lower East Side garden in half.
Under New York State law, a person can claim adverse possession if they “openly, notoriously and exclusively” use someone else’s property continuously for 10 years, and believe they have the right to do so.
“We’ve met the 10-year period, and our suit alleges we’re entitled to damages for having been deprived of the use of the land by the fence,” said C.M.G. attorney Benjamin Burry of the firm Sidley Austin, which is handling the case pro bono. “We are seeking a permanent injunction that will prohibit them from further trespassing or developing the lot in any way.”
Whether C.M.G. members can make this adverse possession claim now, after Hoyda just sold the lot to another developer for $3.35 million, will be a true test of this centuries-old legal doctrine. The new buyer, 157 LLC, is also named in the suit.
On Tuesday, a woman who answered the phone at Hoyda’s real estate firm, S&H Equities, in Long Island, dismissed the lawsuit out of hand: “Are you serious? Do you realize how ludicrous this is, that we don’t even own it now, and that it was a blight on the neighborhood?” responded the woman, who declined to give her name.
The gardeners say they staked their claim to “lot 19” and two adjacent city-owned parcels at the corner of Norfolk and Stanton Sts. 30 years ago, when the place was an open-air shooting gallery festering with trash, rats and used needles. They chased out the junkies, put up a fence, and planted fruit trees and vegetables, transforming it into a green oasis and learning center for local children and neighboring schools.
By contrast, the lawsuit claims “for decades” Hoyda and preceding owners “abandoned lot 19 as a shameful eyesore and a danger to school children.”
City records show Hoyda purchased the lot for $180,000 in 2003. Prior to that, the lawsuit claims that in 1999, Hoyda or his associates tried to erect a “makeshift” interior fence around the lot, but garden members tore it down. Over the years, Hoyda floated some development schemes, but did not move on the site until last May, when he enclosed the lot in a hurricane fence and hired a 24/7 security crew to keep activists out.
C.M.G. members rallied and succeeded in getting the garden’s two adjacent city-owned lots transferred to the Parks Department for preservation under the GreenThumb program. Despite such official recognition and appeals to keep the garden whole, last November Hoyda filed plans to erect a six-story, six-unit residential building on his parcel, complete with a penthouse and gym.
Then in January, Hoyda sold the property to 157 LLC, a legal entity connected to the Yonkers-based development firm Horizon Group. (Horizon is currently putting up a swanky condo building down the block at 100 Norfolk St.)
On Wednesday, Horizon spokesperson Brian Hamburger, sought to distance his firm from the turf war.
“This is really a lawsuit between the previous owner and members of Children’s Magical Garden,” he responded in an e-mail.
Hamburger also defended his clients’ “honest intentions.” He said the partners in 157 LLC were “longtime friends” who “raised their families in New York City” and were seeking to “develop homes for their own children and future grandchildren.”
“They understand the importance of community and plan to work with the local Norfolk residents to maintain the garden while fulfilling their own personal goals,” Hamburger said.
But C.M.G. members say they’ve invested heavily in the property, too. On Tuesday morning, parents, children, teachers and the principal of P.S. 20, the Anna Silver School, gathered near dawn to describe how the garden evolved over the years to serve four neighboring schools — and the irreparable damage it would cause if the heart of this green haven were lost.
“Our claim represents decades of caring for and loving a particular piece of land,” said C.M.G. President Kate Temple-West, who has been mentoring children there for the past 20 years. “Every single tree and plant that’s growing here has been planted by the children in the community, with the help of members and teachers. Every plant means something.”
