Nov. 11, 2013 By Christian Murray
The battle to save the 5 Pointz graffiti Mecca is not over, according to the artists.
These fighting words come just days after a federal court judge said he was doubtful that a lawsuit filed by the 5 Pointz artists to save the building would prevent the building from being demolished.
Gerry Wolkoff, the owner of the property, plans to bulldoze the graffiti icon by the end of the year and start developing two residential towers.
The lawsuit filed by the artists, which is a long-shot, aims to protect their work by saving the building. The artists are in court seeking a preliminary injunction as they attempt to take the case to trial.
However, they were dealt a blow on Friday when Federal Judge Frederic Block, who is presiding over the case, said during the hearing: “I can’t grant the injunction.”
However, Judge Block won’t be handing down his decision until Tuesday. And the attorney for the artists said that the media has “jumped the gun” by reporting the case is lost.
“The judge has not even ruled on the case,” said Jeannine Chanes, the attorney for the artists. Yet, she said, the media makes it sound as though the bulldozers have already come out.
Chanes said the artwork should be protected by the Visual Artists Rights Act (VARA), since it is was completed by highly acclaimed artists, and with the permission of Wolkoff. Therefore, she said, the artwork cannot be altered without each artist’s consent.
Chanes claims that the judge’s comments expressing doubt about the injunction was based on his belief as to whether the building could be save under the obscure VARA statute.
However, she said that for a preliminary injunction to be granted, the judge must make his ruling based on the case meeting one of two main tests.
It must either have a “substantial likelihood of success on the merits” or it must “sufficiently raise serious questions going to the merits, making them a fair ground for litigation.”
Chanes claims that the artists’ case meets the “serious questions” test. Therefore, despite Block’s statement, she remains optimistic.
Marie Cecile Flaguel, who represents the artists, said that Block was doubtful of the VARA suit from the beginning. From the get-go, he said, “there is nothing he could do—yet he gave us two temporary restraining orders and a hearing.”
Should the artists lose, legal experts claim that the ruling would most likely be appealed to the Second Circuit, which would further delay demolition. The artists would also argue that the case meets the “serious questions” test.
However, Chanes would not comment as to whether this was an option—should the artists lose.
Judge Block, during last week’s testimony, did indicate on many occasions that the artists’ case looked weak.
“I love the work and it’s going to tear my heart out to see it torn down, but as a judge I have to apply the law,” Block said.
Block suggested he might have authority to issue a stay of the demolition if there was an application for landmark status pending before the city Landmarks Preservation Commission.
The Landmarks Preservation Commission could not be reached for comment since it was closed in observance of Veterans Day. However, the Daily News reported that an application had been filed earlier this year and was rejected.
Flaguel argued that the landmarks commission often rejects applications before granting a positive ruling. She said that the artists would file another application this week. She said the initial ruling by landmarks came shortly after Councilman Jimmy Van Bramer said he backed G&M’s proposal and the city planning commission had approved it.
She said the group’s Landmarks Preservation Commission application would now be backed up by the facts determined in the VARA case, which would add to its heft.
The judge also suggested that the artists get in touch with the new administration to see if they would be willing to protect the building.
However, without a preliminary injunction, Wolkoff could proceed with the demolition while the artists scramble to get the help of city hall.
Gerry Wolkoff could not be reached for comment.