Misrepresentations and Things Left Unsaid: A Review of the Plan for 321 East 96th Street


Approved 18 months ago, the redevelopment plan was stalled after community groups petitioned the State Supreme Court to have it reviewed in December 2017. Since then, it’s languished as a case file, awaiting a date on the docket. This month, however, it finally returns: Oral arguments are scheduled for March 5th.

So what’s wrong with the plan? Well, as the documents, transcripts, and other filings show, the project’s approval phase was notably confusing. Because there were misrepresentations and things left unsaid, decision-makers didn’t have all the right facts. And that calls into question why they authorized the plan. The distortions began with the RFEI. 



1) The RFEI

Prepared by the CBRE Group, the RFEI (or, Request for Expressions of Interest) was released in 2013. It advertised that “three prime development sites” were being brought to the market by the New York City Educational Construction Fund [ECF]. Two were on Upper West Side and one on the Upper East. Each contained a public school with adjacent open space.

If an investor were interested in “penetrating” these neighborhoods “starved for luxury residential units,” the ECF could help. In exchange for using the ECF’s tax-exempt bond money to demolish and replace the existing school, the investor would receive a 99-year lease to the non-school portion of the site and, more importantly, the site’s unused development rights.

However, once parents, teachers, and local politicians heard about the RFEI, they banded together and forced the ECF to abandon the Upper West Side. In the wake of its loss, the ECF instead focused on marketing a block on East 96th Street. The property contained the School for Cooperative Technical Education [Coop Tech] and the Marx Brothers Playground [Marx Brothers]:



Redevelopment Plan for 321 East 96th Street. From ECF's Request for Expressions of Interest [RFEI]. Photo by the CBRE Group. 2013.

(Site Overview. Screenshot from ECF’s Request for Expressions of Interest [RFEI]. Image by CBRE Group. 2013.)


As the RFEI described, it was a “truly special opportunity.” The chance to “shape the skyline on the Upper East Side.” After all, the this wasn’t just anywhere. It was the “illustrious Upper East Side,” “renown for its high-quality residential living,” “its world-class cultural institutions,” and “the finest hospitals in the country.” Again, an investor could work “within a market starved for luxury residential units.” And with the potential for “incredible views of the city skyline,” an apartment tower on East 96th Street could also benefit from “the cultural venues and abundance of amenities [on] the Upper East Side.”

And then there was this:


The site’s proximity to the future Second Avenue subway line, unencumbered…will attract a diverse residency of families, young professionals, and corporate executives….

The subway will ultimately provide future residents with convenient and seamless transportation to their offices in Midtown and Midtown South.


But despite its insistence, the RFEI was wrong: 321 East 96th Street is not the “Upper East Side.” Rather, it’s Harlem. East Harlem. The address lies in Community Board 11 (East Harlem), City Council District 8 (East Harlem/El Barrio), State Senate District 29 (East Harlem/El Barrio, Randall’s Island, Wards Island, Roosevelt Island), and State Assembly District 68 (East Harlem/El Barrio, Randall’s Island, Wards Island).

Yet none of the RFEI’s 84 pages mention the words “East Harlem,” “El Barrio,” “Spanish Harlem,” or even “Harlem” for that matter. Photos of the site — like the one above — neither gaze north nor identify landmarks that aren’t south of East 96th Street. Presumably, future tenants would have no reason to venture farther into Harlem than East 97th Street. But they’d have to if they needed a school.

By failing to identify the site’s real location, the ECF — supposedly well-versed in the cartography of school districts — permitted a final Upper East Side assumption: Expecting parents could audit schools in Yorkville or Carnegie Hill. Unfortunately, zoned for School District 4, they’d be wasting their time. They’d be re-directed to those in East Harlem South.

So why the deception? Was the ECF worried “East Harlem” wouldn’t sell? Or did the evisceration in the RFEI suggest that its the project was never meant for the people who actually lived and worked in the neighborhood?



2) The Community Board Hearings

In March 2016, Marie Winfield was called to a closed door meeting. She was Vice Chair of the Community Board [CB] 11 Environment, Open Space, and Parks [EOSP] Committee. A few of her colleagues were also invited, and they welcomed two guests: Jennifer Maldonado, Executive Director of the ECF, and Elizabeth Ernish, Administrator of Planning and Parklands at the Department of Parks and Recreation [DPR]. They came to speak about 321 East 96th Street.

Now Ms. Winfield was already familiar with the plan: Coop Tech would be demolished and rebuilt to include a residential tower. AvalonBay Communities [AvalonBay] was the developer. She knew that the scheme looked something like this:




Redevelopment Plan for 321 East 96th Street. From ECF's Request for Expressions of Interest [RFEI]. Original site plan by the CBRE Group. 2013.

(Original Site Plan. Screenshot from ECF’s Request for Expressions of Interest [RFEI]. Image by CBRE Group. 2013.)


But Ms. Maldonado revealed a different design. The plan had been altered:



Redevelopment Plan for 321 East 96th Street. From ECF and AvalonBay's Draft Environmental Impact Statement [DEIS] Scoping Meeting. Revised site plan by ECF and AvalonBay. June 29, 2016.

(Revised Site Plan. Screenshot from ECF and AvalonBay’s Scoping Meeting for the Draft Environmental Impact Statement [DEIS]. Image by ECF and AvalonBay. June 29, 2016.)


Coop Tech would now move to Second Avenue and East 97th Street. Its tower would append to Second Avenue and East 96th Street. Marx Brothers — a Jointly Operated Playground, or JOP, controlled by the DPR and Department of Education [DOE] — would shift to the center of the block. And, finally, Park East High School — currently at 230 East 105th Street — would combine with the Heritage School — currently at 1680 Lexington Avenue — to anchor a structure fronting First Avenue. Ms. Winfield was shocked, but that wasn’t the problem.

Sure, the ECF and AvalonBay would have to go through the City’s Uniform Land Use Review Process [ULURP] to secure approvals for the new layout. But, first, according to Ms. Maldonado,


Alienation of the [Marx Brothers] would be required for this project.


When asked for clarification, she explained that the ECF was “going through the alienation process even though they didn’t believe it was necessary.” In 2004, the MTA alienated part of the Marx Brothers for its Second Avenue Subway staging area, so it would follow that agency’s lead “out of an abundance of caution.” (You can see the MTA’s spot in the first photo above.)

But Ms. Winfield was confused. She understood that an alienation bill from the State Legislature was only needed if a piece of parkland was to be stripped of its protected status and turned over for other purposes. So, if Marx Brothers was a park, why wouldn’t alienation be necessary

After all, here they were discussing it in front of Ms. Ernish — an official from the DPR, no less — and being shown a sketch of the site where a school and tower would rise after the Marx Brothers was no longer a park. Perhaps, Ms. Winfield believed, Ms. Maldonado was being far from “transparent.”

A few months later, on June 9, 2016, the CB11 EOSP Committee held its first open session on the new design. Numerous guests attended, including Ms. Ernish, six of her colleagues from the DPR, and two associates from AvalonBay. Ms. Maldonado made her pitch. In the notes she kept for the record, Ms. Winfield entered:


Parks section of the project will require state legislation on the alienation of parkland to proceed.


However, during Ms. Maldonado’s presentation, she showed the Committee a contradictory graphic:




From Community Board 11's Environment, Open Space, and Parks [ESOP] Committee Meeting. Slide by the ECF and AvalonBay. June 9, 2016.

(Screenshot from Community Board 11’s Environment, Open Space, and Parks [EOSP] Committee Meeting. Slide by ECF and AvalonBay. June 9, 2016.)


There was no acknowledgement of a park. What happened to that prerequisite for alienation? And the western part of the Marx Brothers — it hand’t been “compromised.” As Ms. Maldonado represented months earlier, the MTA had it “alienated.”

There was also that bullet about JOPs. Ms. Winfield knew they were overseen by both the DPR and the DOE — not the DOE alone. How else could they be jointly operated then? And, finally, there was a factual error: The MBP was opened in 1947 — not 1941 — with the muscle of the DPR — not the DOE. Seven officials from the DPR were in the audience, but none of them suggested an edit. 

On December 14, 2016, the sequence repeated itself. At a public meeting of the CB11 Land Use, Landmarks, and Planning [LULP] Committee, Ms. Winfield listened from the gallery as Ms. Maldonado related the project’s first step:


The NYS Legislature [has] to authorize the alienation and disposition to EFC of the existing jointly operated JOP Playground and its replacement with an equivalent amount of JOP Playground.


Alienation was there, but the concept was tied to a “jointly-operated Jointly-Operated-Playground-Playground.” By avoiding the word “park,” did Ms. Maldonado imply that the Marx Brothers was a regular school playground now? She muddied the connotation even further when she put up this slide:




From Community Board 11's Land Use, Landmarks, and Planning [LULP] Committee Meeting. Slide by the ECF and AvalonBay. December 14, 2016.

(Screenshot from Community Board 11’s Land Use, Landmarks, and Planning [LULP] Committee Meeting. Slide by ECF and AvalonBay. December 14, 2016.)


It was similar to the one the EOSP Committee saw, right down to the mistakes. Again, Ms. Ernish was present, but didn’t say a word. And, as the ULURP process evolved, the ECF often imitated her reticence.

For instance, on June 29, 2016, it hosted a Scoping Meeting, the first step in creating the project’s Draft Environmental Impact Statement [DEIS]. The meeting was public, but the ECF had apparently forgotten the people. Ms. Winfield, for one, first found out about it when she read it had taken place on one of the slides Ms. Maldonado projected for the LULP Committee. She demanded an explanation.

Ms. Maldonado assured her that the ECF “met the minimal formal notice requirement by publishing a notice [about the meeting] in El Diarrio and the Daily News, but “only two people” came. After asking around, though, Ms. Winfield discovered that no one from either the EOSP or LULP Committees attended, and neither an email nor announcement dispatched from CB headquarters alerted anyone else. She felt they’d been “shut out of the process during the most critical of moments.” Otherwise, maybe they’d have called out the mounting inaccuracies.

By March 8, 2017, however, they were almost out of time. Before the LULP Committee decided on whether to support the project, Ms. Maldonado produced another exhibit…




From Community Board 11's Land Use, Landmarks, and Planning [LULP] Committee Meeting. Slide by the ECF and AvalonBay. March 8, 2017.

(Screenshot from Community Board 11’s Land Use, Landmarks, and Planning [LULP] Committee Meeting. Slide by ECF and AvalonBay. March 8, 2017.)


…that reduced the DPR’s role to giving “continued input” to the DOE. And its Marx Brothers turf was suddenly “20 years old.” Along with the usual presentation fallacies, that was wrong too. The DPR refreshed it in 2001.

But despite being the linchpin of the project, alienating the Marx Brothers wasn’t up for a vote.

What? Well, according to the minutes that day, the LULP Committee only considered rezoning the block to fit the new layout. But wasn’t that like putting the “cart before the horse”? Probably, but it passed the changes anyway. And so did CB11’s Economic Development, Culture, and Tourism Committee. But when the EOSP Committee assembled on March 9, 2017, something extraordinary happened. 

Before its members could take a vote, Ms. Maldonado asked the Committee to “bring a motion of support” for just the “parks portion of the…project and the schematic redesign of the Marx Brothers Playground.”

The Committee was puzzled. Why would it vote on just a piece of a massive project? Ms. Winfield responded: 


[It’s] inappropriate for committees to support specific portions of a larger mixed-used ULURP application when [it’s] contingent on the entire project being approved.


So the Committee refused. It even abstained from voting on those zoning modifications unless a “comprehensive” review was conducted first. But, unfortunately, the clock had run out.

Although Ms. Winfield and some others dissented, on March 21, 2016, the full Community Board recommended that the re-zonings go forward. In a letter to Marissa Lago, Chair of the City Planning Commission, Diane Collier, Chair of CB11, affirmed her Board’s position. She also wrote this:


Since the mixed-use building is proposed to be constructed within the current Playground location, the State Legislature must approve new legislation designating the mid-block of the Project Area…for the reallocation and reconstruction of the Playground.


What? Aside from the Board not having voted on the issue, what did she mean? Surely she must have known that the Legislature wouldn’t involve itself in “designating” the location of a municipal playground.

But, then again, Gale Brewer, Manhattan Borough President, nearly scribed the same thing. In her own letter to Ms. Lago, she reported that


The [ECF] is seeking approval by the New York State Legislature to relocate and reconstruct the Marx Brothers Playground located along Second Avenue to the mid-block of the Project Area.


Only in her account, Ms. Brewer expanded the Legislature’s power to include licensing the “reconstruction” of playgrounds too.

So what was going on? How did the opening salvo of a plan “requiring state legislation on the alienation of parkland to proceed” become so confused? Perhaps the answer was as Ms. Winfield observed:


There were incorrect data and blatant misrepresentations…that needed correction.



3) The Documents

And yet, they persisted. Take this page from the ECF’s Land Use Application, for example…




Redevelopment Plan for 321 East 96th Street. From ECF and AvalonBay's Land Use Application. January 3, 2017.

(Screenshot from ECF and AvalonBay’s Land Use Application. January 3, 2017.)


…where the space under “List All Current or Prior City, State or Federal Actions Related to Application” was left blank (highlighted). Why did the ECF omit Chapter Law 543 of the State of New York from 2004? That’s the one that authorized the City to


Temporarily discontinue the use as park lands a portion of the [Marx Brothers Playground] for use in connection with the construction of the Second Avenue Subway of the New York City Transit Authority, an affiliate of the Metropolitan Transportation Authority.


Surely that previous alienation bill was “related” to its application.

And under the next heading (highlighted) — where the ECF “required” Legislative recourse “permitting relocation of the existing Jointly Operated Playground located on the project site” — why was “the A word” avoided? Moreover, why didn’t it appear on any of the applications’s other 82 pages? Even when the technical steps “necessary to facilitate” the project were numbered, “alienation” was not among them:




Redevelopment Plan for 321 East 96th Street. From ECF and AvalonBay's Land Use Application. January 3, 2017.

(Screenshot from ECF and AvalonBay’s Land Use Application. January 3, 2017.)


Perhaps the exclusion was intentional. 

After all, under Article 10, Section 454-20 of New York State’s Education Law, the ECF is supposed to relocate a school playground anyway if it erects “non-school facilities or improvements” on an existing one. An appeal for more legislation would just be redundant.

So why list replacing “the existing Jointly Operated Playground” as a “Proposed Action”? Well, by overstating the obvious, maybe the ECF hoped officials reviewing the document wouldn’t look more closely. There’d be no suggestion of “park lands” or “alienation” there to give them pause.

Even when it filed its Consistency Assessment Form, the ECF divested parks from the site on East 96th Street (highlighted):



Redevelopment Plan for 321q East 96th Street. From ECF and AvalonBay's Final Environmental Impact Statement [FEIS]. June 6, 2017.

(Screenshot from ECF and AvalonBay’s Final Environmental Impact Statement [FEIS]. June 6, 2017.)


But it couldn’t persuade the Department of Finance [DOF]. As recently as last quarter, the DOF was still mailing tax assessments to the DPR. After all, according to its database, both the DPR and DOE are dual owners of the block (highlighted):




Courtesy of nyc.gov/finance. November 16, 2018.

(Screenshot courtesy of nyc.gov/finance. November 16, 2018.)


But the issue kept percolating, and the ECF stayed coy.

Take how it handled the criticism in its Final Environmental Impact Statement [FEIS]. Replying to park advocates, who argued its project was nothing more than alienating parkland so AvalonBay could harvest the land’s development rights, the ECF claimed


The proposed alienation legislation recognizes that the [Marx Brothers Playground] is not a public park as defined in the Zoning Resolution, and required that the alienated land be developed with recreational facilities equivalent in fair market value and usefulness to the existing Marx Brothers Playground.


So, it’s not a park. But it is a park. It’s not a park and it is a park! Like a bad reference to Chinatown, the ECF wanted MBP both ways — whichever suited its purpose. Apparently, the term “park” was only used when it wanted something from the DPR.

First found in the ECF’s Land Use Application, one particular employment began like this:


At the request of the New York City Department of Parks and Recreation, the Playground will be moved away from Second Avenue to the middle of the block.


Innocuous enough, until it jumped to the ECF’s DEIS and into the FEIS…


The Department of Parks and Recreation requested that the Marx Brothers Playground be moved away from Second Avenue to mid-block where the playground use was better situated.


…where it morphed into this:


The proposed project would relocate the Marx Brothers Playground to the mid-block—a move which was requested by NYC Parks in order to buffer the playground use from the active First Avenue and Second Avenue corridors….


All told, the DEIS reiterated the “buffer” concept 13 times; the FEIS 14. In fact, the format was so flexible, on May 10, 2017, it wound up in one of the City Council’s public hearings on the plan for East 96th Street.

Testifying before the Department of City Planning [DCP], Martin Piazzola, Senior Vice President of AvalonBay, said


And, based on input from the Parks Department, the new JOP [Marx Brothers] will be located mid-block away from both First and Second Avenue for safety reasons….


So why was it a problem? Well, despite a litany of attributes to the DPR, none of its personnel were ever named as the original proponent. Who told the ECF that Marx Brothers was best suited mid-block? Was it Ms. Ernish? And why did he or she remain anonymous throughout the entire ULURP process?

Who knows. After fronting Second Avenue for over 70 years, suddenly the Marx Brothers needed to be “better situated” and “buffered for safety” by an incoming tower, school, and retail arrangement. Would other JOPs around the City in similar circumstances have to be buffered now too?

Continuing to speak, though, perhaps Mr. Piazzola betrayed the real reason for the buffering: The Marx Brothers’s location. After all, it would make for “seamless” and “convenient” commute. He noted:


The corner of 96th Street and 2nd, rather than 97th and 2nd [Marx Brothers covers both], was chosen for the residential component since it’s the corner location that has frontage on the two wide streets. And, of course, has closer proximity to the new Second Avenue Subway.



4) The City Council Hearings

As opposed to those in Community Board 11, the hearings in this venue had a procedural advantage. There would be no Ms. Winfield or EOSP Committee to question the “parks portion” of the project. In fact, there would be no parks oversight at all. The issue of asking the State Legislature to alienate Marx Brothers was never debated in the City Council Committee on Parks and Recreation. Instead, these “home rule” requests get forwarded to the City Council Committee on State and Federal Legislation.

Perhaps unaware of the backstory, the Committee sent the bill to the full City Council, even after member Ben Kallos (D-District 5 Upper East Side and Roosevelt Island) placed this concern on the record:


With regard to the alienation of a playground across the street from my district to erect a 700 foot tower, I make note of the fact that none of the local Assembly members are sponsoring the legislation and that is deeply troubling to me. I have heard from numerous residents in my district that they oppose this project.

However, it is literally across the street from my district and in all deference to the Speaker, and the fact that each member should have the power in their own district, I vote aye on all.


The “Speaker” was City Council Speaker Melissa Mark-Viverito (D). The plan for 321 East 96th Street fell in her jurisdiction because she also represented City Council District 8 (East Harlem/El Barrio). Explaining how the Speaker first got involved with the project, Ms. Maldonado, back on May 10, 2017, before the DCP, revealed:


At the request of the Speaker’s Office, we were asked to move the two additional high schools [Park East High School and Heritage] into the parcel, so that, that changed the design, obviously.


Heritage shared a building with the Julia de Burgos Cultural Center, so it’s leaving would also enable the Center to expand.

On June 15, 2017, Ms. Mark-Viverito brought the “home rule” request to the floor of the City Council herself, and the recommendation passed. Even Mr. Kallos was in agreement. Six days later, the State Legislature voted on the request and alienated the Marx Brothers Playground. The Council pressed on with hearings to re-zone the rest of the site.

Perhaps taking advantage of the Legislature’s move, Ms. Maldonado, on June 27, 2017, at a public forum of the City Council’s Subcommittee on Zoning and Franchises [SZF], declared:


The Marx Brothers Playground has…always been held in the jurisdiction of the Department of Education…. It’s always been located within a designated zoning district and has generated floor area…it is neither mapped as a park land nor in the jurisdiction of the Parks Department.


Wait, so the park was gone? Ms. Mark-Viverito, sitting in on the SZF Committee, echoed her confusion:


Just to clarify — and I know this is something that I mentioned when we voted on the resolution or the home rule for the park alienation — there is absolutely no space that is being lost in the park, correct? Right?


“Correct,” Ms. Maldonado replied. And Ms. Mark-Viverito:


They replaced 100 percent — in terms of the the amount of open space available — will it be the same as it is now?


“A hundred percent,” Ms. Maldonado affirmed.

But why didn’t she correct the Speaker? Clearly Ms. Mark-Viverito still understood that Marx Brothers was a park. What happened to her pronouncement that it had never been “mapped as park land” before?

The duality lingered, as if Ms. Maldonado encouraged it. She added:


[The amount of open space] also includes that piece [of the Marx Brothers] that has been taken over by the MTA’s Second Avenue staging as well, so the entirety of the park — playground — will be reconstituted and re-modernized.


What? So like the comments recorded in the ECF’s FEIS, was Ms. Maldonado allowing that the Marx Brothers was both a park and not a park? Again, Ms. Mark-Viverito sought more clarity:


Okay, so I want you to just explain again about the relationship that JOP in, in terms of community access to that playground and…versus school access to that playground just in terms of, of…detailing that a little bit further.


But, instead, she received the most astonishing response of the hearings. Ms. Maldonado hedged:


I have some members of the Parks…the Parks Department [here] that can speak with much, much more technical ease than I can about parks.


Yet none were ever called to testify. No one from the DPR was ever asked to go on record. And here was Ms. Maldonado — who, for months had been speaking about parks in laborious detail — suddenly mute.



5) The Money and More

But she regrouped to finish her pitch. Asserting why the Committee should approve re-zonings at the site to accommodate the project, Ms. Maldonado reasoned


It’s an opportunity to build these new schools [Park East, Heritage, and Coop Tech]. There are no capital dollars available for these schools, to be frank. There’s no capital dollars. This is not on the DOE’s list. There’s no capital budgeting allowed for these schools. [The project] is the only way that these schools will happen.


And Ms. Mark-Viverito agreed:


These will be the first new high school facilities in East Harlem in nearly 50 years….


But they passed off as facts things not exactly true. There were more complexities at work than their statements implied.

For example, if the Department of Education [DOE] used enrollment rates to gauge the need for more facilities, that might have explained its reluctance to build. According to data from the School Construction Authority [SCA], the capital projects arm of the DOE, District 4 (East Harlem) high schools operated at 91% capacity over the four academic years between 2014 and 2018. Now Park East (+104%) and Heritage (+129%) ran over, but maybe the district average held more weight with the DOE. On the other hand, the Coop Tech was only 66% full.

And just because modern facilities weren’t being erected, that didn’t mean new high schools weren’t opening in District 4. Heritage itself came online in 1996 and the Esperanza Preparatory Academy in 2008. Additionally, a host of new charter highs began flourishing too. Harlem Prep (2001), New York Center for Autism Charter School (2005), Dream Charter (2008), Renaissance Charter High School for Innovation (2010), and Democracy Prep Endurance (2012) were all recent additions. They helped assuage the loss of the Urban Peace Academy in 2010.

To say there were “no capital dollars for these schools,” though, was quite disingenuous. According to its own capital expenditure accounts, the SCA devoted $5.1 million to Park East between 2010 and 2019. In regard to Heritage, it spent $383,917 — but that figure is deceptive. Since Heritage shares a building with the Julia de Burgos Cultural Center, a more accurate total would include investments there too. Between 2007 and 2019, the New York City Department of Economic Development contributed $8.7 million; and, between 2014 and 2018, the Department of Cultural Affairs $2 million. The onsite total, then, was actually $11.1 million.

Coop Tech, well, it had both of them beat. Between 2010 and 2019, the SCA deployed $8.9 million there; but, if you count the $44.0 million spent on the premises in the 1990s, the SCA really designated more than $52.9 million to Coop Tech over the past 27 years.

And finally, most interesting of all, between 2010 and 2019, the SCA allocated $423.7 million to various projects in District 4 — but not for new high schools. And, between 2010 and 2017, the SCA used $1.2 billion to raise new schools and $812.4 million to build extensions to old schools around the City — but not in East Harlem. Perhaps it could have chosen its endeavors much differently.

Concluding her case, though, Ms. Maldonado alleged,


And the [Marx Brothers] is not budgeted either. This is a field that has not had any development in the last fifteen years. This is not on the Parks’ budget plan either. [This project] is the only way to have this happen.


Or was it? After all, as Speaker of the City Council from 2014 to 2017, Ms. Mark-Viverito had significant influence on which projects were funded by both the City’s capital and the City Council’s discretionary spending budget.

Take Fiscal Year 2017 (July 2016 to June 2017), for example, the period during which the plan for 321 East 96th Street was debated and approved. According to the City’s Authorized Capital Commitment Plan, Ms. Mark-Viverito earmarked approximately $17.2 million for the DPR to use in her district. There were investments made in gardens (Maggie’s Garden, $300,000), playgrounds (Nelson Playground, $500,000), parks (St. Mary’s, $1,500,000) and even the East River Esplanade ($3,000,000). But none were more noticeable than the allocations made for jointly operated playgrounds:


  • James Weldon Johnson Playground, $4.4 million
  • Patterson Playground, $2.8 million
  • Wagner Playground, $1.8 million
  • Pulaski Playground, $1.8 million
  • Poor Richard’s Playground, $1.5 million
  • P.S. 155 Playground, $1.0 million


And, as found in the City Council’s discretionary payouts, the grants Ms. Mark-Viverito issued for FY 2017 totaled $23.5 million. The largest she awarded to the DPR in her district, however, was for Tom’s Dog Run in Jefferson Park ($20,000).

So there was money in the budget when she wanted it there — especially when it came to those other JOPs — but none for the Marx Brothers. Perhaps it wasn’t on the “Parks’ budget plan” because Ms. Mark-Vivierito decided against placing it there. 

But the suggestion that Marx Brothers hadn’t “any development in the last fifteen years” was the most misleading of all.

As mentioned earlier when Ms. Maldonado showed Ms. Winfield and the LULP Committee that slide, the DPR used $900,000 to refurbish the Marx Brothers’s turf in 2001. The City’s Authorized Capital Commitment Plans also reveal something else.

Between FY 2006 and FY 2010, the DPR was given $2.2 million to spend at Marx Brothers on “design during construction” and “in-house supervision of construction.” Moreover, the DPR’s “non-city cost” for “general construction” — probably related to the MTA’s Second Avenue Subway staging area — was $9.7 million. All told, that’s $11.9 million. And, as the MTA’s 2004 alienation bill specified, that’s $9.7 million the agency would have to spend on “restoring the surface of the lands” when it vacated the property.



6) Epilogue 

But none of this mattered. The misrepresentations, the things left unsaid — by then they’d done damage. Maybe they weren’t going to affect the outcome at 321 East 96th Street anyway. After all, speaking before the City Council’s SZF Committee on August 9, 2017, before it approved the project, Ms. Mark-Viverito said:


During the public hearing we heard concerns voiced over the elimination of the Marx Brothers Playground and ability of the playground to generate floor area for development purposes….

I respect and appreciate these concerns, but in the context of a once-in-a-generation project which will deliver new…school space…affordable housing…park space…hundreds of new jobs…cultural space in the Julia de Burgos, there is much here to celebrate as well.

So with that, I ask my colleagues to vote yes.…


And after she finished, they did. 





*Author’s Notes:

  1. Everything attributed to Marie Winfield was taken from the affidavit she filed in conjunction with the State Supreme Court case — Carnegie Hill Neighbors, et al vs. The City of New York, et al — in May 2018.
  2. Most documents and images referenced can be found among the 180 exhibits attached to the case file.
  3. All quotations lifted from the various hearing transcripts and other articles were only edited for clarity when necessary. 
  4. All data presented in “5) The Money and More” was tabulated from the City of New York’s public records. 
  5. Ms. Winfield resigned from Community Board 11 in 2017.
  6. After serving on the City Council for 12 years, Melissa Mark-Viverito was term-limited out in 2017.




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