Davis Polk secured a complete victory in the New York Court of Appeals for Civic Center Community Group Broadway LLC (“CCCGB”), an affiliate of El Ad Group, Ltd., in a case involving the landmarking of 346 Broadway’s clock tower.

346 Broadway is the former New York Life Insurance Company headquarters, at the top of which sits a clock tower with four external clock faces. When built in the 1800s, the clock was operated through a multiple-ton mechanism that required weekly hand-winding. In the 1980s, New York City’s Landmarks Preservation Commission (“LPC”) designated the building and parts of its interior as landmarks, including the clock tower. Despite the landmark designation, under the City’s ownership, the building fell into disrepair. CCCGB acquired the building in 2013 and, pursuant to the New York City Landmarks Law, applied to the LPC for permission to perform significant restoration work on the building. In order to fund the extensive restoration throughout the interior and exterior of the building, CCCGB planned to convert the building to residential use. Among other things, the clock tower would be converted to a multi-story condominium, which would have the effect of preventing public access to the clock tower, and CCCGB would be permitted to electrify the clock while preserving its machinery in order to ensure the clock’s continuous operation. The LPC approved the proposed work.

Following the LPC’s decision, several special interest groups sued the LPC and CCCGB to stop the proposed work on the clock tower, arguing that the Landmarks Law required that the clock tower remain open to the public in perpetuity and that the clock’s operation could not be updated. The New York Supreme Court granted the petition, and a divided First Department affirmed. As a result of these adverse rulings, CCCGB’s plans for the building were on hold.

Taking over for counsel that had handled the proceedings below, Davis Polk was retained to brief and argue the appeal to the New York Court of Appeals. Davis Polk argued that the text of the Landmarks Law’s enabling provisions, as well as the underlying purpose of the Landmarks Law in balancing public and private interests in landmarks, gave the LPC a rational basis to approve the proposal. The Court of Appeals agreed with Davis Polk in a 4-2 decision, reversing the lower courts and handing complete victory to our client.

The Davis Polk litigation team included partner James P. Rouhandeh (who argued the appeal) and associates Andrew S. Gehring, Tina Hwa Joe, Benjamin Zhu and James Paulson. All members of the Davis Polk team are based in the New York office.

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