On First Day of Bronx Shelter Court Fight, Neighbors Charge City is Muzzling a Witness

Since an emergency shelter dropped into a Bronx neighborhood without any local input in August, residents there beat the drum against the plan -- even stationing crowds outside of one of Mayor Bloomberg's campaign offices in the weeks leading up to the election. All the theatrics, the placards, and petitions -- in opposition to a brand new building on St. Peter's Avenue transformed overnight by the City's Department of Homeless Services into a 38-unit shelter for homeless families -- were an animated prelude to a legal battle.

Today was supposed to be their day in court.

But a Bronx judge did not hear arguments in the case lodged by the Westchester Square Merchants' Association against the city this morning. Instead the plaintiff's lawyers complained during a preliminary hearing that the City hampered their ability to establish the facts.

Lawyers for the plaintiffs argued that the City is trying to muzzle their key witness: Kenneth Kearns, the district manager of the local community board...

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Though Kearns, the city-salaried overseer of Community Board #10, remains the gatekeeper of information crucial to the case, the City's Corporation Counsel -- who also represents the Department of Homeless Services in the matter -- has barred him from speaking freely with the plaintiff's attorneys.

"He thought that if he did respond his job would be in jeopardy," said Robert N. Swetnick, a lawyer representing a community organization battling the shelter, at a preliminary hearing held at the Bronx County Courthouse this morning.

Swetnick, and Stephen B. Kaufman, an attorney and former assemblyman, will now have to pursue other means to obtain vital information.

Judge Geoffrey D. Wright, who presided over the hearing, suggested that a friendly community board member, who legally has access to records, escort the pair into the board's office and open up the filing cabinet.

The idea didn't seem to sit well with Christopher Reo, a senior counsel of the New York City Law Department Office of the Corporation Counsel. He insisted that he be notified and present during the document search. Throughout the hearing Reo vigorously opposed the idea of Kearns discussing the matter.

Judge Wright did not hear further arguments in the case, since neither an independent attorney for New York City Comptroller Bill Thompson, who had intervened in the lawsuit, nor a lawyer for the Westchester Square building's landlord were present.

A sense of disappointment and disgust permeated the corridor outside of the courtroom following the hearing among those who have protested the facility since it opened this summer.

"The city seems to be just trying to stonewall the inevitable," said Assemblyman Michael Benedetto, who sat in on the hearing. "All we want to do in this case is produce a factual record of what transpired and the city is trying to put roadblocks into that effort."

DHS transformed a brand new apartment complex at 1564 St. Peter's Avenue in late August. The City agency pays the building's landlord $90 per diem for each of the 38 units in the building -- averaging about twice the market rate rent.

Lawyers hoped that Kearns testimony would reveal details about notification. Like other instances reported throughout the City, the community board remained in the dark about the City's plans until after the shelter debuted.

"The City will do whatever they can to block any kind of meaningful discovery in this matter," said John Bonizio, a plaintiff in the suit and president of the Westchester Square Merchants Association, which is funding the legal fight, "particularly as it concerns the Community Board manager Ken Kearns, who is hiding behind the Corporation Counsel and attempting to assist the city in not putting on the record the fact that the city did not notify the community when they surreptitiously put in this homeless shelter in the middle of the night,"

Since the community board is the epicenter for such information, Bonizio said that Kearns could have helped establish the notification timeline, and could have refuted DHS Commissioner Robert J. Hess's assessment that the area is not oversaturated by social service operations.

Bonizio said that 22 other facilities surround the shelter within a 40-block radius.

When DHS opened the emergency shelter, which serves families, it did not hold fair-share hearings required by the City Charter since it was a transient operation.

But in the Commissioner's affidavit, he indicated that the agency plans to transform the building into a permanent homeless shelter. So, they would hold a hearing when they were close to that goal next year.

But by then, those opposed to the shelter say, it would be too late.

"Any fair share hearing that he's going to do at the end of this process is a charade," Swetnick said.


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