STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE In the Matter of the Application of THE CAMPAIGN FOR BUFFALO HISTORY ARCHITECTURE & CULTURE, INC., Decision & Order Petitioner, Index #: 816904/2021 vs. CITY OF BUFFALO and ADM MILLING, CO., Respondents LIPPES & LIPPES Richard J. Lippes, Esq. Attorney for the Petitioner RICHARD G. BERGER, ESQ. Attorney for the Petitioner PERSONIUS MELBER LLP Rodney O. Personius, Esq. Brian M. Melber, Esq. Attorneys for the Respondent ADM Milling Co. MAGAVERN MAGAVERN GRIMM LLP Edward J. Markarian, Esq. Attorney for the Respondent ADM Milling Co. DAVID M. LEE, ESQ. City of Buffalo Department of Law Cavette A. Chambers, Esq., Attorneys for the Respondent City of BuffaloColaiacovo, J. On remand, this Court again considers the Campaign’s petition seeking to annul the determination of the City of Buffalo (hereinafter “City”) condemning the Great Northern Grain Elevator (hereinafter “Great Northern”) and ordering its demolition. After a full fact-finding hearing, the Court’s decision is as follows. PROCEDURAL HISTORY Previously, the Court issued two decisions in this matter. In the first decision, dated December 30, 2021, the Court found that a more developed record was needed and ordered a fact-finding hearing. As part of that decision, the Court continued the prior temporary restraining order, preventing the owner, ADM Milling Company (hereinafter “ADM”), from demolishing the Great Northern pursuant to the City’s emergency demolition order. After the fact-finding hearing was concluded, this Court issued a decision on January 5, 2022 dismissing the Petition and vacating the temporary restraining order, paving the way for the demolition of the Great Northern. In both decisions, the Court detailed the history of the Great Northern and explained in the case’s procedural history. In an effort not to repeat itself, the Court incorporates those portions of the prior decisions herein. See Decision & Order, dated December 30, 2021, pp 2-6; generally Decision & Order, dated January 5, 2022.Petitioner appealed the January 5, 2022 Decision and Order. On January 14, 2022, the Appellate Division, Fourth Department (hereinafter “Fourth Department”) granted Petitioner’s temporary injunctive relief and restrained ADM and the City from “taking actions to demolish or destroy the historic structure known as the Great Northern Grain Elevator...during the pendency of this motion and until this Court issues a decision on the motion.” See Order to Show Cause, dated January 14, 2022, Bannister, J. However, Petitioners were required to post a bond, pursuant to CPLR 6313(c) and in accordance with CPLR Article 25, in the amount of $100,000 on or before January 21, 2022, which they did. Id. On February 15, 2022, the Fourth Department granted Petitioner a preliminary injunction and enjoined the Defendants from taking any steps to demolish the Great Northern. The bond previously posted was to be maintained during the pendency of the appeal. See Decision on Motion, dated February 15, 2022, 2022 N.Y. Slip Op 62539(U). On April 29, 2022, the Fourth Department issued a Memorandum and Order wherein it reversed this Court’s January 5, 2022 Decision and Order. However, the Fourth Department rejected Plaintiff's argument that the City Commissioner (hereinafter “Comerford”) acted outside his emergency authority under the Buffalo City Code. Matter of Campaign for Buffalo History, Architecture & Culture, Inc. v. City of Buffalo, __ A.D. 3d _ (4 Dept. 2022), 2022 N.Y.App. Div. LEXIS 2823. Similarly, the Fourth Department held that this Court “appropriately directed the hearing on the limited issue of how the Commissioner reached his determination and, specifically, whether the Commissioner had a rational basis for issuing the order for demolition.” Id., citing Monroe-Livingston Sanitary Landfill v. Bickford, 107 A.D.2d 1062 (4* Dept. 1985). However, the Fourth Department found that this Court erred in “refusing to consider petitioner’s proposed evidence inasmuch as it should have afforded petitioner the opportunity to submit ‘any competent and relevant proof...bearing ‘on the triable issue here presented and showing that any of the underlying material on which the [Commissioner] based [his] determination has no basis in fact’... or that the determination was irrational or arbitrary” Id., citing ADC Contr. & Constr. Corp. v. New York City Dept. of Design & Constr., 25 A.D.3d 488 (1 Dept. 2006); see Matter of Mandle v. Brown, 5 N.Y.2d 51 (1958); Matter of Newbrand v. City of Yonkers, 285 N.Y. 164 (1941). The matter was remitted to this Court for a hearing consistent with the decision. Thereafter, this Court conducted two (2) days of settlement discussions with the parties and their principals. However, those attempts were unsuccessful. Further, on May 31, 2022, the Court conducted an on-site inspection of the Great Northern. During this inspection, the Court was able to view the exterior of the building, including the opening on the northern wall,the cantilevered head house, the debris field, and the West wall, which, at the last hearing, the Court learned was “bowing”. A hearing was held on June 2, June 3, and June 9, 2022 wherein each side was permitted to call witnesses to testify. FACT FINDING HEARING Prior to the hearing, the parties stipulated that the exhibits from the prior hearing would be received into evidence for the purposes of the hearing held after remand. Those exhibits included: Court’s Exhibit #1 Letter from Fire Department | Commissioner William Renaldo | Court’s Exhibit #200 Notice of Condemnation Court’s Exhibit #3 Photograph - - Great Northern | Elevator, Northern Wall | Court's Exhibit #4. ~~ | Photograph - Richardson Complex Court’s Exhibit #5 Photograph - Richardson Complex Court's Exhibit #6 ‘Order to Remedy | Court’s Exhibit #7 Photograph - Debris Field Court’s Exhibit #8 Department of Labor Decision, “Variance” for controlled demolition of unsound structures with friable and non-friable asbestos Court’s Exhibit #9 | Flash Drive - Drone footage oeDuring the June 2022 hearing, the following items were received as evidence: Petitioner's #1 Diagram of Great Northern - 1897 Petitioner’s #2 Diagram - Interior Petitioner's #4 Diagram - Cupola Petitioner's #5 Artist's Rendering Great Northern December 1897 Petitioner’s #6 Artist’s Rendering Great Northern October 1897 Petitioner’s #11 Photo - Interior - Chutes, 1990 | Petitioner’s #12 Photo - Bins - 1990 Petitioner’s #13 Photo - Between Main Bins - 1990 Petitioner’s #14 Photo - Distribution Floor - 1990. Petitioner’s #15 Photo - Distribution Floor - 1990 Petitioner’s #16 Photo - Scale Floor - 1990 Petitioner’s #17 Photo - top level - 1990 Petitioner’s #18 Photo - East/North Walt - 4/2021 Petitioner's #19 Photo - Cupola - 2018 Petitioner’s #20 Photo - Distribution Floor - 12/2021 Petitioner’s #21 Photo - “Brick laying” -1900 Petitioner’s #22 Comparison Photos of South (1907) and North (2021) Walls after collapse Petitioner’s #23 Photo - South East Corner, H plates | Respondent’s #8 l Photo - Northern Wall after collapseRespondent's #9 Photo - Debris Field, corroded H plate Respondent’s #10 Photo - Debris Field Respondent’s #11 Photo - East Wall, cracks Respondent's #12 Photo - North Wall, cupola prior to collapse Respondent’s #13 Photo - cupola after collapse, brick debris Respondent's #13a Electronic Version of #13 Respondent's #13b Electronic Version of #13 Respondent’s #14 Photo - exposed cupola after collapse Respondent's #15 Photo - aerial photo after collapse Respondent's #17 Photo - aerial photo before collapse Respondent's #18 Photo - surveillance video before collapse Respondent's #18a Electronic Version of #18 Respondent’s #20 Photo - aerial photo of debris field Respondent's #21 Photo - aerial photo of debris field Respondents #28 Report on the Structural Condition of the Great Northern Grain Elevator - Schenne & Associates - December 2021 Respondent’s #29 Submission Concerning Emergency Demolition Order Due to Safety Respondent’s #30 Photos (3) - exposed opening, showing bricks without mortar Respondent’s #31 Photo - exposed North wall and stairs leading to cupola Respondent's #32 Photo - East Wall, debris field Respondent’s #33 Photo - North Wall, Opening 7Respondent’s #34 Photo - aerial photo, cupola Respondent’s #35 Powerpoint Packet Respondent's #35a Electronic Version #35 Respondent's #37 Selections from HAER Report By stipulation of the parties, the prior testimony of James Comerford, the Commissioner for the Department of Permit and Inspection Services for the City of Buffalo, was included as part of this record. The Court's findings regarding his testimony are incorporated herein and made a part hereof. JAMES COMERFORD James Comerford is the Commissioner of Permits and Inspection Services for the City of Buffalo (hereafter “City”). Prior to becoming Commissioner, Comerford had an extensive career of public service in the City. He first began employment with the City as a building inspector in 1979. In 1983, he became Director of the Department of Permits and Inspection Services and previously served as Commissioner in 1985. Upon becoming the City’s representative to the Pilot Field construction project, he resigned as Commissioner. He subsequently was a construction manager for a private company for twelve years. In 2007, he returned to the City as Deputy Commissioner before again becoming Commissioner in 2010. Comerford testified about the responsibilities of a building inspector. He noted that building inspectors are code enforcement officers and are certifiedby New York State. Code compliance, Comerford explained, often deals with safety issues. He stated that as Deputy Commissioner, he oversaw the management of the day-to-day operations of the Department and was placed in charge of the City’s “Five-for-Five” program where he oversaw the demolition of 15,000 vacant buildings and structures. He testified that he was also involved in evaluating structures for emergency demolition. This, he noted, he did “thousands of times”. He testified that he ordered as many demolitions as he did reject applications for demolition. Each demolition authorization depended on individual circumstances. However, in evaluating larger structures, such as the Great Northern, fire hazards and safety issues are greater concerns that need to be evaluated. Upon becoming Commissioner again in 2010, he noted that he oversaw all demolitions and was responsible for issuing condemnation letters. In 2021, and at the time of the wall collapse at the Great Northern, Cathy Amdur was the Deputy Commissioner and Tom Broadfuhrer was the Assistant Director of the Department. Amdur, who oversees the day-to-day operations and manages all department chiefs and inspectors, has a degree in engineering and has significant municipal experience, previously working in the City’s Public Works Department. Broadfuhrer, in addition to being Assistant Director, is a certified code enforcement officer and has special expertise in building demolition. Though serving as Assistant Director for the last five years, Broadfuhrer has been a certified building inspector for the past 25 years.With respect to the Great Northern Elevator, Comerford testified that he was quite familiar with the property in light of his extensive service in the City. He stated that on December 12, 2021, Amdur and Broadfuhrer notified him that the northern wall of the building collapsed during a windstorm on the evening of December 11, 2021. He advised his team to conduct an assessment and determine whether there existed a danger of collapse. To ascertain the extent of the damage, the City wished to deploy its drone. However, on Monday, December 13, 2021, it was determined to be still too windy for the drone and its use was postponed until Tuesday, December 14, 2021. On December 13, 2021, the City issued an “Order to Remedy”. In its Order, the City directed ADM to “provide the City of Buffalo with a Statement of Intent on the repair plan or demolition to the damaged section of the building within, five days.” See Court’s Exhibit #6. Subsequently, Comerford stated that he met with Brian Melber, legal counsel for ADM, and John Schenne, an engineer and geologist retained by ADM to discuss the Order to Remedy. He noted he wanted ‘to know of ADM’s intentions as to the building’s future. On December 14, 2021, the drone footage was obtained by the City and reviewed by Comerford. Comerford testified that the footage provided a closer view of the damage to the interior of the elevator as well as the cupola, which has also been referred to as the “headhouse”. On December 15, 2021, Comerford reached out to William Renaldo, Commissioner of the City of Buffalo Fire 10Department, and asked him to evaluate the property to determine whether there was a basis for an emergency demolition. When asked why he involved Commissoner Renaldo, Comerford stated that he wanted someone to tell him the building could be salvaged. Comerford also testified that that he received the engineering report from John Schenne, on behalf of ADM, on December 15, 2021 as well. Comerford received the recommendation letter from Commissioner Renaldo on December 17, 2021. #1, In the letter, Commissioner Renaldo found the building to be unstable and that “the size and scope of the building present a multitude of life safety hazards to both workers at the site, and civilians due to the building’s close proximity to the waterfront and increased attractions to the area.” Id. Noting the hazards the building posed to the adjacent waterway, railways, and commercial traffic, as well as the potential collapse and risk to firefighters should they be needed, the Commissioner determined that the “risk versus reward is simply too high and therefore recommend[s] that the building be taken down via emergency demolition.” Id. In Light of the drone footage that documented the compromised nature of the northern wall, the engineering report, the Fire Commissioner’s letter, as well as the results from the investigation performed by his Department, Comerford issued his condemnation letter on December 17, 2021. See Court’s Exhibit #2. uwIn his notice of condemnation, Comerford found the Great Northern Elevator to be “structurally unsound and in imminent danger of collapse.” Id. In particular, he testified that the hole in the northern wall compromised the integrity of the wall and is failing. He noted that the masonry lacked reinforcement, which could lead to further collapse. He also testified that his team found, and the drone footage confirmed, stress cracks on the eastern wall and that the wall facing the Buffalo river had begun to “bow”. Further, the cupola lacked adequate cantilever support and the metal sheeting to the cupola was not adequately fastened to the structure. While Comerford was careful not to predict when the building would collapse, he opined that the grain elevator’s condition, taken as a whole, constituted a safety hazard, could not be repaired, and posed an immediate danger. Thus, Comerford testified that he was justified in issuing the emergency demolition order. Comerford stressed the deliberative process his team engaged in before making the condemnation decision. Noting the unique quality and historic nature of the building, he testified that he wanted to make sure everything was done properly and thoroughly before issuing the demolition order. However, it became quite clear that the windstorm damage was pervasive, rendering the building unstable. He noted that further collapse into the river would be “catastrophic” and that a nearby business, General Mills, also located on Ganson Street, utilized the railway that runs right next to the Great Northern. In 12addition, Comerford noted that under current code, all walls must be designed and constructed to withstand 115 mph winds. If this most recent storm was a north-easternly windstorm, which would have struck the northern portion of the structure head on, the damage could be more calamitous. During petitioner’s cross-examination, Comerford acknowledged that neither he nor any member of his staff are engineers or architects. While noting his deputy commissioner possesses an engineering degree, she is not licensed. He testified that he did speak with Gwen Howard, the Chair of the Preservation Board and herself an architect, about the wall collapse, a pending emergency declaration, and possible demolition. He noted that after reviewing all of the potential options with Howard, she was adamant that the site should not be condemned or demolished. Comerford testified that throughout his deliberative process, he certainly took into consideration the “unique” quality of the building and its historic significance. When asked if the building’s damage could be abated or repaired, Comerford stated that “he does not provide solutions,” but evaluates buildings to determine whether they meet the standard for an emergency demolition. Comerford also testified that if the condition did not constitute an emergency, the matter would have been referred to Housing Court or the Historic Preservation Board for remedial action. However, he was adamant the buildingcould not be repaired or abated and met all requirements for an emergency demolition. Comerford testified about certain properties that he “saved” from demolition during his time as Commissioner. These included historic properties located on High Street. He noted that he worked and consulted with Jesse Fisher, the Executive Director of the Preservation Board, to save those buildings. He also testified that often he would consult with engineer Edward Tredo before demolishing a structure. He also identified Volker’s Bowling Alley and a Sewing Building that he attempted to salvage, noting their historical uniqueness. However, here, he was quite certain that given the condition of the Great Northern, he did not need to go outside the City to reach the conclusion that it posed an imminent risk and required demolition. Comerford also testified that he denied ADM’s previous request for an emergency demolition a year and a half ago. At that time, however, the walls were not compromised as they are now. Comerford noted that the large, gaping hole in the northern wall of the building, compromised masonry, and stress cracks in the remaining walls now, unlike before, justify an emergency demolition. The drone footage of the interior of the building after the partial wall collapse shows that there is no wall support that would prevent any further deterioration. Notwithstanding Petitioner’s argument that the building could be 16saved, Comerford concluded that it is likely the building will collapse and, if so, such an event would pose a significant risk to public health and safety. As to the cupola and the missing metal sheeting, Comerford explained that ADM cannot hire any contractors who can re-attach the sheeting without jeopardizing the safety of their workers. Because of the height of the cupola, and the structural instability of the underlying building, Comerford testified that ‘ADM cannot adequately fix and repair the sheeting issues. Though presented with several alternatives to demolition by Petitioner, Comerford was unequivocal that the condition of the building reached the point of being a heightened public and health safety risk which necessitated demolition. Comerford believes this assessment is supported by his team’s inspection, the drone footage, and the Fire Commissioner’s letter. During. ADM’s cross-examination, Comerford acknowledged that his decision was made independent of any recommendations made by ADM. He noted “I have said no to ADM before and would do it again.” However, this time, the decision to demolish was supported by all the evidence his department gathered. Comerford again went through bullet points in Court’s Exhibit #2 which, he opined, rendered the structure structurally unsound and in imminent danger of collapse. He further noted that it was possible that the headhouse and individual metal sheets could blow off the structure, posing a safety risk to those in the surrounding area. 15While he testified that he could not predict the future, on re-direct, Comerford stated that he had sufficient information to render his decision and nothing more was needed. Comerford explained that this was not an easy decision to make given the unique and historic nature of the Great Northern. In light of that fact, Comerford “wanted to be very thorough on reaching a conclusion.” PAUL McDONNELL Petitioner called Paul McDonnell to testify. McDonnell, the chairman of the Campaign for Greater Buffalo, History & Architecture, testified as an expert in the area of architecture. Receiving his undergraduate degree in environmental planning from the State University of New York at Buffalo in 1982, McDonnell later received his Masters Degree in Architecture from SUNY at Buffalo ‘in 1996. McDonnell began his career as an architect at Cannon Design. He subsequently became Senior Architect for the City of Buffalo before finishing his career as Director of Facilities for the Buffalo Public Schools. He has his certification from NCARB (National Council of Architectural Registration Boards) and received disaster training, which permits him to evaluate buildings that are damaged. Respondents did not object to his designation as an expert. McDonnell testified that the Great Northern’s brick walls range from 25 inches thick at the base to 17 inches at its top. He called the Great Northern a “monolithic structure.” In referring to Petitioners #21, a photograph showing 16the brick laying patterns used in the 1900’s, McDonnell testified that the methods used at the time were considered the “best practices” in constructing larger structures like the Great Northern. The method used, as shown in Petitioner's #21, reveals how each brick was “locked” together. The grain elevator was built using a series of “H-Clips” or “H-Plates”, which will become crucial throughout understanding how the Great Northern stood. These clips/plates provide surface supports by bracing the structure every twenty feet by fastening the plate and rod to the interior steel bin apparatus. See Petitioner’s #23. In dissecting the Commissioner’s emergency determination (See Court’s Exhibit #2), McDonnell asserted that there was no evidence that the walls were compromised. He testified that, contrary to the evidence offered at the initial hearing, there is no evidence that the “bonding” keeping the wall intact has failed. Despite the evidence that the bricks failed, as demonstrated by the large hole in the northern wall, McDonnell stated that in order to determine if the bricks failed, testing of the bricks is necessary. Core samples would need to be taken and drilling into the wall would be necessary. McDonnell noted that all four walls stand independent of each other. He maintained that the interior bins would prevent the other walls from falling onto the other walls. However, he was not asked whether the structure would prevent the walls simply from falling forward onto whatever lay below. vThe witness suggested that the damage to the North wall could be repaired. Using Petitioner’s #22 as a reference, he explained that in 1907, the South wall had a similar collapse which resulted in a large hole in the masonry similar to the one that current exists in the North wall. According to McDonnell, the damage to the South wall was repaired quite easily and quickly. He saw no reason why the hole in the North wail could not be fixed in the same way as the hole in the South wall was repaired. Further, he testified that, contrary to Comerford’s testimony, he was unaware of any applicable, existing building code that prohibited the repair of the North wall. He disagreed with earlier suggestions that the wall needed to be completely torn down and replaced with a new wall that complied with current building codes. While he acknowledged that he had not worked on a project of this magnitude, he did not believe the Great Northern was beyond repair. Further, he testified that the damaged bricks in the debris field could be re-used, a temporary netting could be installed, and that jersey barriers could be used to shield the area from any further damage caused by a subsequent collapse. McDonnell also took issue with Comerford's determination that the lack of control joints required the demolition of the building. He testified that control joints were not used in 1897 when the building was first built. As such, that could not be used to consider whether the building was unsafe. He similarly criticized Comerford’s conclusion that the foundation was failing. McDonnell 18noted that even the Schenne Report (Respondent’s #28) drew no conclusion about the foundation, Given that no one has been inside the building to inspect the foundation, and accounting for the manner in which the foundation was first constructed, McDonnell found the Commissioner’s determination to be without support. Lastly, he found the conclusion that the Great Northern was a fire hazard to be flawed. He noted that the Great Northern was built to be fireproof. Recounting the early history of combustible grain elevators, McDonnell stated that the Great Northern was built precisely to deter fire or flammable events. McDonnel firmly believed that any risk of fire or explosion was minimal. Further, he could find no evidence in the record before Comerford that noted the existence of combustible materials inside the elevator. McDonnell spent a significant amount of his testimony on the cupola. Contrary to what Comerford noted in his determination, McDonnell stated that the cupola, or head house, was not attached to the brick walls. Instead, he insisted that the cupola was “supported all the way down to bedrock.” He maintained that the steel cupola was attached to the steel bin frame. Because he contended that the cupola was designed to cantilever, the head house was in no danger of further collapse. He concluded that a crane could easily be used to repair the cupola and replace existing sheeting. Ultimately, McDonnell did not believe Comerford had enough information to draw the conclusions he did, especially since some of the information, in his 19opinion, was erroneous. He did note that despite his call to Comerford to discuss the possible demolition, Comerford never returned his call. McDonnell maintained that the building was “robust” and “wasn’t going anywhere”. On cross-examination, McDonnell insisted that the collapse of the North wall had no effect on the three remaining walls. He did not feel that the damage “compromised” the structural integrity of the rest of the building. Interestingly, he conceded that there was no indication the day before the collapse that the North wall gave any appearance of imminent failure. He also conceded that he could not, with any certainty, testify that the H-clip rods remain attached to the steel bin frame. When asked if he was aware if there was a crane large enough to extend 120 feet in the air to repair the cupola, he admitted that he had not done any independent investigation to determine if this was feasible. Further, he acknowledged that he was not sure how feasible placing netting around the elevator would be or how that would be done. In referring to Respondent’s #20, which shows the “fall zone” or “debris field", the witness conceded that there were already jersey barriers in place to “protect the public”. McDonnell admitted that, in Respondent’s #20, the jersey barriers were covered with bricks and that the debris field extended past the jersey barriers.McDonnell, who acknowledged he has an interest in the outcome of this case since he is the President of the Preservation Society, admitted to writing a letter to Mayor Byron Brown after the City’s determination became apparent. In his letter, he stated that he “disagreed with all of [Comerford’s] findings.” However, under cross-examination, he acknowledged that he agreed with Comerford’s finding that the North wall was compromised. He also contradicted his own letter when he agreed with the Commissioner that there were indeed stress cracks on the East Walt. McDonnell also conceded that the H-plates failed. If the purpose of the H- plates was to reinforce the wall, McDonnell could not explain why the wall stilt fell. Further, McDonnell contradicted his prior testimony regarding the sturdiness of the bricks. He could not explain why the bricks fell, despite their “sturdy” design. Despite his insistence that the Great Northern was a monolith, which was designed not to move, McDonnell could not explain why it did move and why it did collapse. Further, he conceded the Commissioner was correct when he determined the corrugated metal panels to be a safety hazard. He also agreed that the Commissioner had a basis to conclude the structure presented a fire risk, since his conclusion was based on representations made by the Fire Commissioner. He also acknowledged that the Commissioner was indeed correct when he mentioned the Great Northern did not meet current code. As such, after cross-examination, Petitioner’s expert witness conceded and 21acknowledged that five of the bullet points contained in Comerford’s notice of condemnation were factually correct. When showed Respondent’s #13 and #14, two photographs that show the open area and the exposed cupola, McDonnell maintained that, despite the evidence of four metal plates that served as bearing plates which were attached to the brick walls, the cupola was nonetheless attached to the inside structure. This was perplexing since no one introduced any physical or documentary evidence to support the conclusion that the cupola was attached to the steel frame and not to the brick. When shown these exhibits that clearly show the steel girders that support the cupola resting on the brick walls, McDonnell insisted that there was a difference between “supporting” and “resting”. Notwithstanding evidence to the contrary, on re-direct, McDonnell insisted that there were no signs of imminent failure or in danger of complete collapse. GWEN HOWARD-MANN Petitioner's next witness was Gwen Howard-Mann (hereinafter “Howard- Mann”). She currently serves as Vice-President of Foit Albert, an architectural, engineering, and surveying firm in Buffalo, New York. As Vice-President and a licensed architect, she manages the architecture practice. She holds an undergraduate degree in historic preservation from Savanah College and was awarded her Master’s Degree in Architecture in 1992. She passed the New York 22State licensing boards in 1995. She first was employed as a Building Inspector for the City of Buffalo. Thereafter, she was employed by Foit Albert. She testified that she has worked on numerous historic buildings including, but not limited to, the Richardson Psychiatric Building, Buffalo Public School buildings, the Mennonite Meeting House in Amherst, New York, and the Michigan Street Baptist Church in Buffalo, New York. She has served two terms as Chairman of Buffalo’s Preservation Board. Petitioner offered her as an expert in architecture and historic preservation. No objection was raised. Howard-Mann was familiar with the Great Northern Elevator. She served on the Preservation Board when ADM first requested its demolition in the late 1980's - early 1990’s. She could not recall the specific reason the request to demolish the building was made, but she did note that the demolition did not. occur. Subsequent to the collapse on December 11, 2021, Howard-Mann was contacted by Comerford. He informed her that he reviewed materials regarding the Great Northern and was “leaning towards issuing a demolition order.” She advised him that she believed this to be an imprudent decision, While she acknowledged Comerford was not obligated to call her, she did appreciate the communication. Thereafter, she reviewed the Schenne Report (Respondent’s #28) and called Deputy Commissioner Amdur and “pleaded to be involved” in the 2Bprocess. However, she testified that she received no further calls regarding the City’s determination. Howard-Mann testified that the hole in the North wall can be repaired. While she disagreed with McDonnell, who believed that the old bricks could be re-used, she Howard-Mann testified that different materials would be needed to repair the hole. Respondents did not cross-examine the witness. WILLIAM RENALDO The City called Buffalo Fire Commissioner William Renaldo (hereinafter “Renaldo”) to testify. Renaldo, who has served as Fire Commissioner for four years, testified that he has been a firefighter for forty years and prior to being named Commissioner, he served as a Battalion Chief for ten years. Renaldo testified that he first learned of the Great Northern collapse from Commissioner Comerford and the news media. He explained that prior to investigating theSch property, he viewed the drone footage. After viewing the footage, he testified that he had “grave concerns”. Initially, he noted that should the West Wall or the marine towers attached to the West wall collapse, it would block the adjoining riverway. This is problematic since the Buffalo Fireboat, the Edward M. Cotter, primarily uses this waterway. If the Cotter was needed and the waterway was obstructed, lives could be imperiled. The debris 24alone he considered to be “catastrophic”. Further, because the area is a heavily trafficked commercial zone, the possibility of injury to pedestrians increases exponentially. Lastly, Renaldo testified that interruption to Ganson Street would interfere with fire-fighting services should they be needed. Though Renaldo conceded that an on-site examination was conducted, he testified that he would not let his crew “anywhere near it” because of the danger it posed. Because the structure was opened, he testified that he had “no idea” what could be inside. This general uncertainty led to his opinion that something inside could be combustible and present a fire hazard. Under Petitioner’s cross-examination, Renaldo conceded that none of the debris entered Ganson Street. However, he did note that Buffalo Firefighters did have to stop traffic in order to stabilize the area. While he offered no opinion about the architecture of the building, he reiterated he was not asked to render such an opinion to Comerford. Instead, he was asked to evaluate the safety of the building. He did concede that, in his opinion, the building was not in danger of imminent collapse. However, based on his knowledge of buildings in general, he stated that if one part of the building is weakened, all other parts are as a result. He did acknowledge that other buildings in the vicinity of the Great Northern are not in any present danger. While he did admit that the building was not flammable and there was not a high probability of a fire, he maintained that there is still a likelihood of a fire from what he could observe. However, 25,resisting any attempt to downplay the significance of the buildings condition, Renaldo testified that the building would collapse at some point and that it remains “not-safe” in its current condition. During ADM’s cross-examination, Renaldo admitted that the key factor in his determination was the gaping hole in the North wall. He testified that he believed Comerford’s decision was a practical one based on emergent conditions. JOHN SCHENNE John Schenne is a consulting structural engineer retained by ADM. He has a Bachelor's degree and Master’s degree in engineering from Clarkson University. While he attended classes at the University at Buffalo School of Architecture, he did not receive a degree. He is a licensed engineer in 20 states. In New York, in addition to being a licensed engineer, he is also a licensed geologist. He currently serves on the New York State Department of State Variance Board. As a structural engineer, he testified that he has worked on 3,000 to 4,000 projects and has testified as an expert in structural engineering on at least six prior occasions. Without objection, Schenne was qualified as an expert witness. Schenne testified that he was contacted by ADM regarding the collapse of the Great Northern on either December 11 or December 12, 2021. He noted that he visited the site on Monday, December 13, 2021. He testified that, given the large hole in the North wall and sizeable debris field, he found the building to 26be dangerous and opined that further collapse was likely. While he acknowledged he did not review historical documents, he reviewed structural plans, drone footage, and photos. Thereafter, he prepared a report on December 15, 2021, that recommended demolition. See Respondent's #28. In his report, Schenne noted his concerns for further collapse and the injuries that might occur. Notwithstanding the surrounding commercial corridor, he noted that ADM had nearly one hundred employees on site who could be affected by a full collapse. He found the 120-year-old building to be deteriorating. In particular, he noted the mortar between the bricks to be in bad condition. He testified that the “strength of the exterior wall depends on the masonry.” With respect to the exterior walls, the mortar used was soft lime mortar. The soft lime mortar, which was never considered a “high-strength mortar”, had lost its bond. In examining the debris field, Schenne testified that none of the displaced bricks had mortar attached to them. Based upon that, Schenne concluded that the “capacity to hold up the wall isn’t there.” Schenne noted that toward the top of the structure, there are no H-clips. The purpose of the H-clips was to provide lateral stability. Attached to the H- clips are steel rods that, as noted previously, are attached to the interior bin frame. However, Schenne testified that the H-clips he observed in the debris field all had corroded rods. Some H-clips had no rods attached at all. Because ‘it was likely there was no attachment, Schenne advised that there was no lateral 27support. He further testified that while standing in the opening of the North wall, he noticed that many of the H-clip tie back rods were missing. As the exterior wall thinned as it grew higher, Schenne opined that the lack of lateral support compromised the exterior walls. While he acknowledged that some of the H-clips may still function, if some are bad, the wall, by design, cannot support itself and will not stand. In addition, Schenne took issue with the wind gust that ultimately factored in the collapse of the North wall. Using meteorological data from the weather services, he noted that the wing gusts on the day of collapse to be approximately 60 to 65mph. He found this to be a moderate windstorm considering the winter conditions. Schenne noted that under the 2020 wind design load code, new buildings must be designed to withstand wind gusts of 115mph. He concluded that buildings in “good condition” should not get damaged in a moderate windstorm such as the one on December 11, 2021. With respect to the cupola, or head house, Schenne opined that it was definitely supported by the walls and not the interior steel frame. The existence of heavy-duty bearing placed on the exterior walls supported this conclusion. As to the repairs to the cracks in the walls, Schenne maintained that cracks are evidence of a weakened wall. While a repair may mend the surface of the crack, he testified that the repairs “do not repair the structural integrity of the wall.” 28Thus, the cracked walls, which support the cupola, reinforced Schenne’s testimony that the entire structure was perilous. Ultimately, Schenne opined that the North wall’s failure was caused by the combination of long-term degradation over 125 years and a design that “lacked adequate reinforcement of the masonry.” Citing the lack of bond between the bricks, cracks in the walls, bowing of other walls, and missing bricks, Schenne concluded “there was no satisfactory method of stabilizing high unreinforced walls.” When asked to address McDonnell’s suggestions of scaffolding, netting, and jersey barriers, he testified that netting would be nearly impossible since the heavy netting would have to be fasted to the remaining exterior walls. Since he believed the exterior walls to be compromised, Schenne testified that the walls could not support the heavy netting. Further, he insisted that he knew of no net that could catch 350 tons of brick that fell from the North wall, let alone the remaining walls. With respect to scaffolding, like the netting, it would have to be anchored to the structure. He advised that holes would have to be drilled into the exterior walls, which, according to Schenne, could not support further compromise. Lastly, with respect to the jersey barriers, Schenne noted that if the barriers were extended any further, they would most likely cause the closing of the adjacent rail lines, that still are used. 29Schenne found Comerford’s determination to be rational. He noted that Comerford is tasked with addressing “life-safety” issues. While he was personally surprised the Great Northern had not already collapsed, he insisted it would collapse when exposed to higher wind gusts. He found no safe alternative existed other than demolition. On cross-examination, Schenne repeated that he was not required to dig holes, go inside the structure, test the mortar, or conduct any other invasive experiments. Further, he noted that he needed nothing further to conclude that the bricks lost their bond. When buildings lose their bond, the masonry is compromised, and demolition is often necessary according to Schenne. With respect to the cracks, Schenne could not say when the cracks occurred, but he could conclude that the repairs were done decades ago. When asked why the North and South walls fell, Schenne noted that he observed a design defect. He observed that the South wall had different types of H-clips than the ones used on the North wall. Schenne also concluded that no repair of the building was possible. To repair the Great Northern, Schenne posited that the defective portions of the building would have to be removed and replaced. For Schenne, there were too many defective portions to justify repair. Petitioners continued to insist that the interior steel fame, and not the exterior walls, supported the cupola. However, Schenne, quite forcefully, mentioned the existence of the bearing plates and anchor bolts as why this claim 30was wrong. He repeatedly maintained that the existence of bearing plates embedded in the brick wall all but negated McDonnell’s opinion that the cupola was supported independent of the masonry. Dr. Allan Rhett Whitlock Dr. Whitlock is a civil engineer from South Carolina. Whitlock is the founding principal of WDP & Associates, a consulting engineering firm. Licensed ‘in 20 states, Whitlock has a PhD in civil engineering. His doctoral thesis was on the strength of mason bolts and focused on the weatherproofing of masonry. Whitlock testified to his experience with older buildings. He has worked on the B&O warehouse in Baltimore, Maryland and was retained by the University of Virginia to inspect, investigate, and repair the collapse of the portico built by Thomas Jefferson, He also noted that he has testified ten to fifteen times. Whitlock confirmed he was retained by ADM to offer expert testimony relative to the determination made to demolish the Great Northern. When offered as an expert, no objection was received. Whitlock was familiar with the notice of condemnation, the Schenne report, other older reports, the drone video footage, as well as historical records of the Great Northern. In reviewing Comerford’s determination, he agreed that the North wall masonry was compromised and failing. He noted that 10 of the H-clip plates had fallen and were found in the debris field. He also stated that the left side of the North wall was completely unstable and, in his opinion, not aLstructurally sound. He identified the corroded anchors as problematic for the cupola. Agreeing with Schenne, Whitlock testified that the exterior walls supported the cupola. The fact that the walls were compromised presented a dangerous condition for the cupola. Whitlock concluded that no reasonable engineer would not conclude that the North wall has not failed. Whitlock also agreed with Comerford that the walls lacked reinforcement. While he conceded it was not common practice for walls to have reinforcement, using Respondent’s #31, Whitlock showed that the 3 bearing plates attached to the masonry was completely ripped away. Only one bearing plate remained attached to the masonry. Because the exterior walls lacked lateral support (e.g., intermittent flooring), the only support the walls had were the H-clips. Because the majority of the H-clips were missing on the North wall, and it was uncertain whether the remaining H-clips were functional, Whitlock agreed with Comerford’s determination and concluded that the wall lacked reinforcement and was likely to collapse. Whitlock agreed with Comerford that there were cracks in the wall. Relying on Respondent’s #32, Whitlock pointed out large cracks and other smaller cracks in the East wall. This evidence alone provided evidence that Comerford was correct in noting that the walls were cracked. While he noted that several cracks were repaired, like Schenne, Whitlock opined those repairs do not “reconstitute the structural integrity of the wall.” Because cracks only weaken 32the wall and bricks naturally expand, Whitlock opined that Comerford had a rational basis to conclude that the building would have benefited from control joints. With respect to the cupola, relying on Respondent’s #13, Whitlock concluded that the weight of the roof and the end of the cupola was supported by the exterior brick walls. When #13 was enlarged, it was clear that smaller beams rested on top of the brick walls. Further, Whitlock noted that the Shed Roof at the top of the cupola found its support from the brick walls. Because the North wall partially collapsed, Whitlock found the cupola “in peril.” Respondent’s #9 and #34, which depicted the Shed Roof, show the end beam to have deflected and curved. This, according to Whitlock, is evidence of displacement. Further, Respondent’s #17, a photo taken before the December collapse, shows the roof in a perfect straight line. Respondent’s #34, taken after the collapse, shows the significant deflection caused by the collapse. Because the cupola is poorly supported, in Whitlock’s opinion to be “pushing down”, Comerford had a rational basis to conclude the building to be “unsafe and unsound,” Regarding the corrugated metal sheets atop of the cupola, Whitlock noted the missing panels and considered their general condition to be “bad”. He found the loosened panels to be an “imminently dangerous condition.” He opined that 33‘it would not take much wind for panels to come off and hurt those in the general vicinity. Whitlock found the cause for the collapse to be the strong wind and the corroded anchors that were readily found in the debris field. Because these conditions exist elsewhere in the building, it is more likely than not the building was in imminent danger of collapse. Whitlock offered a power point presentation showing a combination of the drone footage and photographs that he took. See generally Respondent's #35. The presentation summarized his testimony with photographic evidence to support his conclusions. The debris field contained damaged and deteriorated masonry and the exposed area corroborated his testimony that the roof beams supporting the cupola were embedded in the exterior walls. The anchors clearly were shown to be found in the masonry. His photographs showed bricks projecting out from the East/North corner, which only verified his conclusions that other portions of the exterior walls were compromised. The marine towers, which are affixed to the West wail adjacent to the river, were shown to be extremely corroded as well. The rail lines that hold the marine towers to the exterior, according to Whitlock, are “barely holding on” and “ready to fall off.” Whitlock stated that the rails are “distorted due to thermal contraction and expansion.” 34Taken all together, Whitlock found Comerford’s determination to be rational. He found the building to be dangerous because of “the deterioration of the mortar, the corrosion of the steel, the lack of support, and the thinness of the walls considering its height.” Whitlock found the remaining walls to be in Poor condition and in imminent risk of collapse. He concluded that the building needs to be taken down, which, he noted “is itself a dangerous task.” During cross-examination, Whitlock, like Schenne, noted that no scientific testing was necessary. Whitlock stated, “there is no need to test the mortar...it has no bond to the brick, never did, isn’t now, and wasn’t supposed to.” He also testified that he thought the interior bins also were compromised and had faulty support. He believed that the masonry also supported some of the bins. However, he conceded that he could not conclusively determine this since he did not go into the building itself. Regarding his conclusion that the collapse was imminent, he testified that there is a high probability of failure and that extreme caution should be taken. Whitlock predicted that the other walls would fall with time. In fact, he added the “sagging” of the exterior will most likely lead to the collapse, which is even more likely with increased wind velocity. No further witnesses were called. The parties were given until June 21, 2022, to make final submissions in writing. Upon receipt of those submissions, the matter was deemed submitted. CREDIBILITY 35As noted in the prior decision, it is well established that the “trial court, which had the opportunity to view the demeanor of the witnesses, [is] in the best position to gauge their credibility.” Massirman v. Massirman, 78 A.D.3d 1021 (2"4 Dep’t. 2010). It is equally established that “[iJn a non-jury trial, evaluating the credibility of the respective witnesses and determining which of the proffered items of evidence are most credible are matters committed to the trial court’s sound discretion.” Goldstein v. Guida, 74 A.D.3d 1143 (2™ Dep’t. 2010). Thus, the trial court’s assessment of the credibility of witnesses and evidence is afforded great weight on appeal. See Alper v. Alper, 77 A.D.3d 694 (2° Dep’t. 2010). The Court previously found Comerford to be extremely credible and gave his testimony significant weight. Nothing has been presented to contradict this finding. The Court found Paul McDonnell also to be credible. While well- intentioned, the Court found many of his suggestions to repair the Great Northern to be slightly improbable and far-fetched. However, the Court still found him to be a credible witness. That being said, the Court cannot ignore the fact that he certainly has a bias, since he is President of the Petitioning organization. The Court also found Gwen Howard-Hanna to be persuasive. However, her testimony was extremely limited and failed to tackle any substantive disagreements she had with the Commissioner’s findings. She simply concluded that there were alternatives to demolition. 36The Court also found John Schenne to be credible. The Court cannot discount his report nor the conclusions he reached. The Court found him to be “committed to his cause” and credited his testimony accordingly. However, the Court found Dr. Allan Rhet Whitlock to be the most credible witness. The Court found him to be singularly impressive and quite persuasive. Like Schenne, he found the Commissioners determination to be rational. However, Whitlock was able to corroborate each finding with photographic evidence that supported the prior determination. As such, the Court afforded his testimony significant weight. STANDARD OF REVIEW In an Article 78 proceeding, a Court must uphold the administrative exercise of discretion unless it has “no rational basis" or the action is “arbitrary and capricious.” Matter of Pell v. Board of Ed. Union Free School District, 34 N.Y.2d 222 (1974). “The arbitrary and capricious test chiefly relates to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact. Arbitrary action is without sound basis in reason and is generally taken without regard to the facts.” Id. at 231; See also Jackson v. New York State Urban Dev Corp., 67 N.Y.2d 400 (1986). Rationality is the key in determining whether an action is arbitrary and capricious ‘or an abuse of discretion. Matter of Pell v. Board of Education, 34 N.Y.2d at 231. 37The Court's function is completed on finding that a rational basis supports the administrative determination. See Howard v. Wyman, 28 N.Y.2d 434 (1971). However, of importance here, courts are not supposed to supplant a determination with another if that determination is found to be rational. “Where the administrative interpretation is founded on a rational basis, that interpretation should be affirmed even if the court might have come to a different conclusion.” Mid-State Management Corp. v. New York City Conciliation and Appeals Board, 112 A.D.2d 72 (1% Dep’t. 1985) affd 66 N.Y.2d 1032 (1985); Matter of Savetsky v. Zoning Bd. of Appeals of Southampton, 5 A.D.3d 779 (2d Dep’t. 2004). Matter of Plaza Mgt. Co. v. City Rent Agency, 48 A.D.2d 129 (1 Dept. 1975); Minton_v. Domb, 63 A.D.2d 36 (1% Dept. 1978); Matter of Cale Dev. Co. v. Conciliation & Appeals Bd., 94 A.D. 2d 229 (1% Dept. 1983). In this context, the Court must consider whether Petitioner is entitled to a preliminary injunction. It is well settled that the moving party seeking a preliminary injunction must demonstrate by clear and convincing evidence a likelihood of ultimate success on the merits, irreparable injury if the injunction were not granted, and a balancing of equities in favor of granting the injunction. Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 N.Y.3d 839 (2005); Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860 (1990). If any one of these three requirements are not satisfied, the motion must be denied. Faberge Intern., Inc. v. Di Pino, 109 38A,D.2d 235 (1 Dep't. 1985). An injunction is a provisional remedy to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual. However, it is not to determine the ultimate rights of the parties. As such, absent extraordinary circumstances, a preliminary injunction will not issue where to do so would grant the movant the ultimate relief sought in the complaint. Reichman v. Reichman, 88 A.D.3d 680, (2" Dep't. 2011); SHS Baisley, LLC v. Res Land, Inc., 18 A.D.3d 727 (2 Dep't. 2005); SHS Baisley, LLC y. Res Land, Inc., 18 A.D.3d 727 (2% Dept. 2005). DECISION As noted previously, in its decision remitting the matter back to this Court, the Fourth Department held that Petitioner should have the opportunity to submit “any competent and relevant proof...bearing on the triable issue here presented and showing that any of the underlying material on which the [Commissioner] based [his] determination has no basis in fact’..., or that the determination was irrational. or arbitrary.” Matter of Campaign for Buffalo History, Architecture & Culture, Inc. v. City of Buffalo, A.D. 3d an Dept. 2022), 2022 N.Y. App. Div. LEXIS 2823. Notwithstanding the testimony of McDonnell and Howard-Manna, Petitioner has failed to demonstrate that the Commissioner had no basis in fact when issuing his condemnation determination. Further, Petitioner has failed to show that the determination was irrational or arbitrary. 39Comerford’s testimony illustrates the deliberative process he undertook before issuing his condemnation notice. Comerford conducted a site inspection, used aerial drone footage to examine the scope of the damage, relied on expert reports, contacted the Fire Commissioner seeking an opinion, reached out to the Historical Preservation Board for their input, and collaborated with his entire building and inspection staff. See Decision & Order, January 5, 2022, pp.13-16. Comerford’s decision was not spontaneous nor was it rushed. He took six days after the collapse to make the emergency determination to order the Great Northern’s demolition. It hardly can be considered arbitrary. Petitioners were afforded the opportunity to present evidence that Comerford’s determination was not rational or had no basis in fact. Their witnesses failed to do so. While McDonnell is truly committed to the cause of historic preservation and, in particular, the rehabilitation of the Great Northern, he failed to offer persuasive testimony or evidence that would suggest Comerford’s determination was not rational. In his Notice of Condemnation dated December 17, 2021, Comerford highlighted five major concerns with the Great Northern. Those included: 40The northern masoury wall is compromised and failing. “In inspecting the compromised northern wall, the masonry construction appears to lack reinforcement. Additionally, the height to width ratio appears to be far excessive of design standards. + Upon visual inspection with drone footage, there are multiple visual stress cracks at the east wall (Ganson Street facade}. The masonry appears to lack control joints. + There is evidence of structural faiture at the uorthern portion of the building. The roof deck and ‘penthouse/cupola support structure appear to have failed anchorage polnts where the northern masonry ‘wall failed, The roof deck and penthouse/cupote appear to cantilever for approximately 15 feet without ‘support atthe north end, This failure has the potential 10 compromise the life and safety of individuals in ‘proximity to the building. + There is also a major life und safety issue associated with the corrugated metal panels at the roof and penthouse/cupota detaching from anchorage points in common weather events. There is evidence of metal panels detaching and traveling to neighboring properties. Upon viewing drone footage, there are missing ‘panels atthe penshouse/eupola and many panels exhibit significant correstan. See Court’s Exhibit #2. During cross-examination, McDonnell conceded the masonry was compromised and failing. He further admitted that the masonry construction lacked reinforcement. He acknowledged that there were stress cracks on the East wall. He also admitted that there was evidence of structural failing at the northern portion of the building. McDonnell also conceded that there were life and safety issues associated with the loose corrugated metal panels that were “attached” to the cupola. While McDonnell disagreed with the Commissioner on whether the building was in imminent danger of collapse and whether the building could be repaired, and whether or not control joints were used, it is hard to ignore McDonnell’s agreement with the majority of the substantive conclusions Comerford reached when issuing his condemnation order. McDonnell’s disagreement on whether it would collapse or whether it can be repaired is entirely subjective. Further, his suggestions did not seem at all feasible or practical. This was supported by Schenne and Whitlock’s testimony aLthat were quite critical of McDonnell’s suggested remediation ideas that included netting, scaffolding, and the use of jersey barriers. McDonnell’s testimony is classic disagreement with the conclusions reached and not the facts from which Comerford made his determination. As such, McDonnell’s testimony fails to illustrate how Comerford’s determination had no basis in fact or that it was irrational or arbitrary. Similarly, in her brief testimony, Howard-Manna disagreed with Comerford’s determination but, like McDonnell, she agreed with many of the substantive bullet points set forth in the Notice of Condemnation. As ADM notes in their post-trial submission, Howard-Manna was never asked whether she believed Comerford’s determination to be rational. The failure to address the very issue Petitioner’s must demonstrate in order to be successful with their own “expert” is a fatal one. This Court is puzzled that Petitioner only called witnesses who have a clear interest in the outcome, as opposed to a witness, perhaps an engineer, who is unaffiliated with the organization seeking the relief ‘it requests. While Petitioner’s witnesses failed to do so, ADM’s witnesses clearly demonstrated that Comerford’s decision was rational and made with a basis in fact. Upon examining the building, Schenne found the building to be dangerous and opined that the Great Northern was likely to collapse. He found that the deteriorated mortar, the lack of bonding, the corroded H-clips, the cracked 42walls, and the lack of bearing plates to support the cupola all raised serious questions about the sustainability of the building and the hazardous conditions ‘it presented to employees, the public, and surrounding area if not demolished. Given that Comerford is tasked with addressing “life-safety” issues, the determination to demolish the Great Northern was extremely rational and justified. Whereas Petitioner’s witnesses brought conjecture, Whitlock brought data. An expert structural engineer who has investigated historic building collapses, he too found Comerford’s determination to be rational and sound. Like Schenne, he found the North wall to be unstable and not structurally sound. He too found that the bricks had lost their bond and that the walls lacked reinforcement. Whereas McDonnell argued that the cantilevered cupola was attached to the interior steel bin frame, Whitlock actually showed, using photographic evidence, that the bearing plates attached to the cupola were completely ripped away from the masonry. He demonstrated that, contrary to McDonnell’s testimony, the beams supporting the cupola were clearly resting on the exterior walls. Noting the poor condition of the remaining walls, he found the cupola poorly supported and bearing down on the already fragile walls. Whitlock found Comerford’s determination to be entirely reasonable and found demolition the only viable option. a3Given the fact that Petitioner’s witnesses failed to show why Comerford’s decision was not rational and without a basis in fact and that Respondent’s expert witnesses more than sufficiently demonstrated why there was a rational basis to issue the demolition order, this Court cannot grant Petitioners the injunctive relief they request. As noted previously, Courts have affirmed efforts to demolish buildings that are deemed unsafe and dangerous. In Wolk v. Reisem, the Fourth Department found that “[iJn the face of a clear threat to the public health and safety, the governmental duty to its citizens and civil servants to protect such vital interests must take precedence over the aesthetic and historical concerns expressed by [the Preservation Board].” 67 A.D.2d 819 (4*" Dep't. 1979}. Also, in Historic Albany Found. v. Fisher, the Third Department was asked to consider a trial court’s determination that a building commissioner's determination that a building was unsafe, and issuance of a demolition permit was not arbitrary. Like the Buffalo City Code, namely §103-38 and 17-2(j) that vests the Commissioner broad authority to act whenever an unsafe building poses a threat to public safety, the Albany Commissioner exercised his emergency powers by ordering the demolition of a building he found “to constitute an immediate danger to the health, safety and welfare of the public, and adjacent properties and occupants therein.” 209 A.D.3d 135 (3"¢ Dep’t. 1995). The Third Department affirmed the trial court’s decision, noting that “the Building Commissioner isempowered to order a demolition whenever a building is a direct hazard or an immediate danger to the health, safety or welfare...of the public.” Id. at 138. Here, the record clearly establishes that Comerford had a rational basis in fact to determine that the overall condition of the building, as well as the significant damage caused by the December 2021 windstorm, warranted demolition. After a complete hearing, with both sides afforded the opportunity to call witnesses, the Court finds that Comerford clearly had a rational basis in fact to act within his authority to order the demolition of the Great Northern. See also Historic Albany Found. v. Coyne, 159 A.D.2d 73 (3" Dep’t. 1990); Matter of Greenpoint Renaissance Enter. Corp. v. City of New York, 137 A.D.2d 597 (2"4 Dep’t. 1988). Given the record now is fully developed, the Court has no basis to substitute its judgment for that of the Commissioner, as his determination is neither arbitrary, capricious nor contrary to the law. See Hauser v. Town of Webb, 34 A.D.3d 1353 (4 Dept. 2006). In fact, the Court finds that the Commissioner reasonably concluded the Great Northern constituted a safety hazard and was beyond repair. Further, the Court must give deference to factual evaluations made that are within an agency’s area of expertise. See Violet Realty, Inc., v. City of Buffalo Planning Board, 20 A.D.3d 901 (4' Dept. 2005); City of Rensselaer v. Duncan, 266 A.D.2d 657 (3"¢ Dept. 1999). The record shows the Commissioner’s methodical, collaborative, and comprehensive process 4sundertaken to evaluate the building after the December 2021 collapse was anything but arbitrary. Instead, it was quite rational under the circumstances and this Court, again, will not disturb it. While the Court certainly notes the public interest in this case as well as the history of Great Northern itself, nostalgia and attraction does not warrant reaching a conclusion that is contrary to the facts. While everyone is entitled to their own opinion, they are not entitled to their own facts. After the hearing, the facts show that this building, while historic and of sentimental interest, cannot survive with a huge, gaping hole in its northern wall. This is further illustrated by its over-all poor condition, cracked facade, and failures in the structural integrity of the building. The corroded H-clips, the compromised weight and load bearing plates ripped away from the masonry, and a cantilevered cupola with detached corrugated metal sheeting, all constitute justifiable reasons Comerford considered when issuing his condemnation notice. The catastrophic consequences to human life, the public, and the environment are too terrible to contemplate should this structure collapse, which experts have opined is likely when facing heightened wind gusts that are common in Western New York’s winter months. Further, repair is not practical and, despite suggestions to the contrary, no one has come forward with a realistic plan or the financial resources dedicated to fund such an endeavor. 45As such, the Court has no reason to find that Comerford lacked a rational basis in fact when issuing his demolition notice. There is likewise no evidence in this record, after a fact-finding hearing, that Comerford acted arbitrarily or capriciously when he ordered the Great Northern to be razed. Since the Petitioner has failed to satisfy its burden that would otherwise entitle it to injunctive relief, the Court hereby DENIES the request for a preliminary injunction. The Court also VACATES the Temporary Restraining Order. Respondents will file their Answer or Motion to Dismiss the Petition no later than August 12, 2022. cf. Nogas v. Griffin, 136 A.D.2d 939 (4*" Dept. 1988). This shall constitute the Decision and Orde) e Court. Hon. Emilio Colaiacovo, J.S.C. ENTER Buffalo, New York July 5, 2022 a7