NY Times coverage of our lawsuit

Choice for New Restaurant Prompts Park Group's Suit
By JAMES BARRON
Published: June 22, 2006


The to-do list for the Friends of Dag Hammarskjold Plaza, a neighborhood group that helps look after a small city park across from the United Nations, usually includes things like planting new flowers, checking the irrigation system that is supposed to water them and raising money for the 1.59-acre park.

And coordinating its work with the Parks Department.

But now the Friends is suing the Parks Department.

At issue is a cafe that occupies a greenhouse-like structure at one end of the park, on 47th Street between First and Second Avenues.

The Parks Department is moving to replace the concessionaire who runs it, and the Friends maintains that the agency broke its own rules in choosing a new restaurateur.
The city's deal with the current operator, Mark Grossich, expires at the end of the month. After reviewing bids from Mr. Grossich and three other interested concessionaires, the city chose the New York Milkshake Company to replace Mr. Grossich's Patio Cafe.

"The community feels betrayed," said Anne Saxon-Hersh, who founded the Friends in 1999.
So the group, along with Mr. Grossich, filed suit in State Supreme Court in Manhattan. In court papers, they argued that the Parks Department's choice of New York Milkshake was "arbitrary and capricious" and broke the department's rules for awarding concessions. Justice Lewis Stone has scheduled a hearing on the case for tomorrow.

Warner Johnston, a Parks Department spokesman, said the agency does not comment on pending lawsuits. But department officials said that they had followed their procurement procedures — the rules the Friends says the department violated — to the letter.
A spokeswoman for the city comptroller, William C. Thompson Jr., said the deal with New York Milkshake was under review. A deputy comptroller, John Graham, wrote to the parks commissioner, Adrian Benepe, last week, seeking Parks Department documents concerning the deal.

For the Friends, which claims credit for helping to revitalize what it says was once "a shamefully neglected public park," the cafe has become an important element of the park. The Friends says that until it was rebuilt in the late 1990's, the park was "a barren stretch of pavement with a homeless encampment."

Ms. Saxon-Hersh, who remembers those days only too well because she lived in an apartment building across from the park, said she started the Friends "because all along, we knew that the city didn't have the wherewithal to take care of the park."

"It was clear to us," she said, "that you've got to have a mechanism to take care of the park."
Other parks have their private, nonprofit champions — notably Central Park, with the Central Park Conservancy, which manages the 843 acres that were laid out by Calvert Vaux and Frederick Law Olmsted.

And when it came to Dag Hammarskjold Plaza, the Friends became a champion of the Patio Cafe, writing to elected officials like Assemblyman Jonathan L. Bing, Representative Carolyn B. Maloney and the Manhattan borough president, Scott M. Stringer. They, in turn, wrote to other elected officials, including Mayor Michael R. Bloomberg and Mr. Thompson, challenging the way the winning concession was chosen.

New York Milkshake's bid called for the city to receive substantially more in license fees. New York Milkshake offered $48,000 a year, $18,000 more than the Patio Cafe offered.
But the Friends' supporters question whether New York Milkshake could generate the revenue to pay such a fee.

The Friends says that the New York Milkshake Company is inexperienced and that its only other operation, on St. Marks Place, failed. New York Milkshake's owner, Scott Marcus, denied that. "I could have stayed longer," he said. But after a rent increase, he decided to close that operation and open several others, including one in Battery Park and two on New York Waterways ferryboats.

"All I want to do is sell milkshakes and grilled cheese," he said. "What this has turned into blows me away." Referring to Mr. Grossich, he said, "This guy doesn't want to lose his license. He didn't want to pay for it, he came in third in the bidding, not even second, and he's trying to knock my credentials, which I think is very rude."