New Suit Argues That Sculpture Garden Is Itself a Work of Art
Lower Manhattan community activists have opened a new front in the campaign to preserve Elizabeth Street Garden, filing suit in federal court under a 1990 law, the Visual Artists Rights Act (VARA). This statute confers the protection of a legal theory known as “moral rights” to the work of artists, allowing them to prevent “distortion, mutilation, or other modification of the work which would be prejudicial to [the artist’s] honor or reputation.” These rights remain with the artist, regardless of who owns or possesses the work, or where it is located.
The suit is led by Joseph Reiver, a sculptor who is also the executive director of the nonprofit that is fighting to prevent the closure of the Elizabeth Street Garden (a publicly owned lot that connects Elizabeth and Mott Streets at mid-block, north of Spring Street and south of Prince Street). Mr. Reiver is the son of late art dealer and gallery owner Allan Reiver, who created the space in 1991 by turning an abandoned lot into an open-air annex to his adjacent Elizabeth Street Gallery. In the quarter century that followed, the father-and-son team (supported by a small army of volunteers) filled the half-acre parcel with sculptures, while also cultivating a verdant garden there. Decades of improvements have turned the facility into a de facto public park that has come to be regarded by local residents as a treasured amenity.
The lawsuit, filed in federal court in Lower Manhattan on Tuesday, argues that “the Garden… is a single unified sculptural work of visual art, comprised of carefully selected sculptural elements, complemented by plantings specifically curated to accentuate them, thematically integrated into the foundation, to create a neo-Classical theme mixed with a sense of timelessness.”
The brief filed with the federal court alleges, “the integration of the sculptural elements, all featuring a neo-Classical theme, with the Garden’s foundational elements, characterized by the principal east-west principal path and the prominent balustrades, supplemented by the plantings, create a single unified and thematically integrated sculpture,” and “the Garden is a unified whole that is inextricably bound to the location of the lot. The removal of any of the physical elements that comprise the Garden will destroy, distort, mutilate, or otherwise modify the integrity of the Garden.”
“As such, the Garden is a sculpture and a social sculpture eligible for protection under VARA,” the lawsuit concludes, asking that the federal court order the City to cease efforts to evict the Elizabeth Street Garden from the lot it occupies.
The site has been the focus of a decade of controversy, which began with the 2014 announcement by the City’s Department of Housing Preservation and Development (HPD) that it planned to create permanently affordable housing for low-income seniors there. Critics of the plan were unappeased by a compromise vision that included both affordable housing for seniors and a new (albeit smaller) public garden, which would shrink from approximately 20,000 square feet to roughly 6,700 square feet.
For at least a year, the fate of the Elizabeth Street Garden has been whipsawed by dueling New York State court decisions. The prospect of stopping the plan with litigation seemed to fade last June, when the State’s highest court upheld a prior, lower court ruling by that allowed the City to proceed with its planned eviction. But after HPD obtained a local court’s permission to move ahead with the plan, a State appellate judge agreed to consider a separate set or arguments, and then prohibited the agency from continuing with the plan before October 30. As that deadline loomed, the Appellate Division of the First Judicial Department weighed in, giving the Elizabeth Street Garden advocates until this month to show why HPD should not be allowed to take possession of the site.