Magic Moment: Appeals Court Favors Children’s Magical Garden in Adverse Possession Claim

Posted on: July 16th, 2018 at 5:00 am by

May 2013

After four years of litigation, a major score for the Children’s Magical Garden at Stanton and Norfolk Streets!

The Appellate Court in the ongoing case – which pit the garden corporation against former landlord Serge Hoyda and current owner Horizon Group – has sided with the former regarding defendants’ motion to dismiss the “Adverse Possession” argument. It was on appeal from the prior judgement. It’s a major step forward for the Children’s Magical Garden in the drive to own all its land. “An extremely rare occurrence,” in the words of the judge, of “prime” real estate on the Lower East Side.

Garden President Kate Temple-West and advocates held a press conference early Friday morning to officially announce the latest news.

“This decision puts Children’s Magical Garden one important step closer to justice for our precious garden, protecting it for the benefit of many more generations of children and families of the Lower East Side and NYC,” Temple-West told us.

“We are very thankful to our legal representatives Benjamin Burry and the Sidley Austin team, and to all of our supporters including our Councilmembers, CB3, school principals, teachers, parents, caring neighbors, and especially the children themselves.”

Photo: Children’s Magical Garden

As previously reported, by evoking the state law of Adverse Possession, the party has the right to ownership if they’ve occupied the property for at least a ten-year period. In this case, CMG is operating under that assumption, and the courts agreed, as the park has continually maintained a presence on the vacant land in question since 1985. Members of the community garden, spearheaded by Kate Temple-West, continue to posit that Hoyda had all but abandoned his parcel (157 Norfolk Street) to trash and drug dealers over thirty years ago. (The defendants argued that CMG did not incorporate until 2012, and so couldn’t claim adverse possession.)

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 trees and garden constructions.)

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. Yet that didn’t stop the Department of Buildings from approving the 80-foot-tall residential compound at 157 Norfolk Street. Nothing has happened in the ensuing four years of lawsuits, though.

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