MATSIKOUDIS & FANCIULLO, LLC
128 Monticello Ave., STR 1
Jersey City, NJ 07304
(201) 915-0407
Attorneys for Plaintiffs
BOGUSLAVA HUANG, BART
BAGNIEWSKI, SLAWEK PLATTA,
AUDREY PITYANSKI
Plaintiffs,
v.

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CASE NO.
CIVIL ACTION

CITY OF JERSEY CITY, MAYOR STEVEN
FULOP, in his individual and official
capacities,

VERIFIED COMPLAINT AND
DESIGNATION OF TRIAL
COUNSEL

Defendants.
Plaintiffs, through their undersigned attorneys, state their Complaint as follows:
PRELIMINARY STATEMENT
1.

This action seeks to place a needed judicial check on an unfettered executive fiat

by preventing Defendants Mayor Steven Fulop (“Fulop”) and the City of Jersey City (“Jersey City”)
from, at a minimum, unilaterally removing the Katyn Forest Massacre Memorial (the “Katyn
Memorial”) from its present location in downtown Jersey City.
2.

The Katyn Memorial is of great significance to Poles residing in Jersey City and

across the world.
3.

Significantly, the Kaytn Memorial’s location was chosen by the Jersey City City

Council (the “City Council”) via proper legislative enactment.
4.

Nevertheless, Fulop – and, under his leadership, Jersey City – have unlawfully

sought to usurp the City Council’s authority, and move the Katyn Memorial without any public
input and in violation of the laws of the State of New Jersey.

 5.

Additionally, Fulop’s ultra vires act in violation of State Law contravenes Federal

Law, as it infringes on the rights of Pityanski, the artist who sculpted the Katyn Memorial.
PARTIES, JURISDICTION AND VENUE
6.

Plaintiff Bart Bagniewski is an individual of Polish descent who resides in the City

of Jersey City, County of Hudson, and State of New Jersey.
7.

Plaintiff Boguslava Wang is an individual of Polish descent who resides in the City

of Jersey City, County of Hudson, and State of New Jersey.
8.

Plaintiff Slawek Platta is an individual of Polish descent who resides at 6508 75th

Place, Queens, New York.
9.

Plaintiff Andrzej “Audrey” Pityanski is an individual of Polish descent – and the

artist who crafted the Katyn Memorial – who resides at 60 Sculptors Way, Hamilton, New Jersey.
10.

Jersey City is a municipal government, organized under the Mayor-Council Plan

C form of government set forth of the Faulkner Act N.J.S.A 40:69A-1 et seq.
11.

Defendant Steven M. Fulop (“Fulop”) is an individual who holds the elected

office of Mayor of Jersey City. Defendant Fulop is sued in both his individual and official
capacities.
11.

As several Plaintiffs and all Defendants either reside or are otherwise located

in New Jersey, as the Katyn Memorial is located in New Jersey, and as at least one of Plaintiffs’
claims vests subject matter jurisdiction exclusively in United States Federal Court, this Court
is the proper forum for trial in this action.
FACTUAL ALLEGATIONS
12.

The Katyn Memorial is a 34-foot-tall bronze statute created by renowned

 sculptor Plaintiff Andrzej Pityanski. It stands on top of a granite base, and depicts a Polish soldier
being impaled by a bayonet, which commemorates the massacre of thousands of Polish soldiers
by the infamous Soviet dictator Joseph Stalin.
13.

Jersey City accepted the Katyn Memorial as gift from the Katyn Forrest Massacre

Memorial Association pursuant to an ordinance (the “Katyn Ordinance”) adopted the City Council
on September 25, 1986. The Katyn Ordinance cited N.J.S.A. 40:12-5 as its enabling legislation. A
copy of the Katyn Ordinance is attached as Exhibit A.
14.

The Katyn Ordinance stated that the Katyn Memorial would be located at 75

Montgomery Street in the City of Jersey City, on the meridian strip on the west side of Washington
Street, facing the Hudson River.
15.

Notwithstanding the directive of the Katyn Ordinance, the Katyn Memorial was

never placed at 75 Montgomery, because the meridian strip location described in the ordinance
was too small to fit the massive statue.
16.

Some two-and-a-half years after it passed the Katyn Ordinance, and spurred by the

impossibility of locating the Katyn Memorial at the originally-designated site, the City Council
approved a resolution (the “Katyn Resolution”), which created a plaza at Exchange Place (i)
named the “Katyn Monument Plaza,” and (ii) wherein would be located the Katyn Memorial in
order to honor the aforesaid slain soldiers. A copy of the Katyn Resolution is attached hereto as
Exhibit B.
17.

Notably, the City’s representations to Pityanski – that the Katyn Memorial would

be placed in a prominent position overlooking the water – were key to Pityanski’s design of the
Katyn Memorial, and to the decision to gift the Katyn Memorial to the City.

 18.

The Katyn Memorial has existed at its current location in Exchange Place for nearly

three decades. Generations of people of Polish descent – from not just Jersey City, but around the
world – have felt a deep spiritual connection to the Katyn Memorial as an expression of the
recognition by America and Jersey City of the Polish sacrifice during World War II.
19.

In December 2016, Jersey City announced the creation of the Exchange Place

Alliance Special Improvement District (the “SID”), a nonprofit created by local ordinance
charged with assessing local commercial properties, so that same may be compelled to pay
a fee for improvements. The President of the Mack-Cali real estate firm is on the Board of
the SID and plays a major role in its operations. Mack-Cali contributed $250,000 to a political
action committee intended to help the aborted gubernatorial campaign of Fulop.
20.

On April 30, 2018, Fulop tweeted a picture of the Katyn Memorial (the “First

Tweet”) and wrote:
“FYI. This is what you see when you come out of the PATH. We’ll be moving this
statue from Exchange Place + will temporarily store it at DPW so it doesn’t get
damaged. We’re doing engineering work as we prepare for repairs to the area + a
community space/green park w/ seating.”
A copy of Fulop’s First Tweet is attached hereto as Exhibit C.
21.

The First Tweet insinuates that Jersey City’s planned removal of the Katyn

Memorial from Exchange Place would be merely temporary and only so “it doesn’t get damaged.”
However, Poles from Jersey City to Warsaw were skeptical. They doubted whether creating a
park at Exchange Place would ever be able to harm a bronze and granite statue – and certainly
doubted that moving the massive monument would somehow keep it safe.
22.

On May 5, 2018, the fears of the Polish community – both in Jersey City and around

the world – were realized: Fulop changed his tune and tweeted his real intention – to permanently
move the Katyn Memorial. In a second tweet, Fulop stated, “The statue is being MOVED to the

 place it was supposed to be.” A copy of the May 5, 2018 Tweet is attached here to as Exhibit D.
The full set of tweets made by Mayor Fulop concerning the Katyn Memorial is attached as Exhibit
E.
23.

Upon information and belief, Fulop has not received any authorization from the

City Council to move the Katyn Memorial. Two members of the City Council, including the
member who represents the area which includes the Memorial, have made public statements
expressing their concern that the Council was not consulted before the decision was made to
remove it. An article from the Jersey Journal containing such statements is attached as Exhibit F.
FIRST CAUSE OF ACTION
ULTRA VIRES ACT IN VIOLATION OF THE FAULKNER ACT
24.

The Mayor-Council plan under the Faulkner Act provides that “[e]ach

municipality. . . . shall be governed by an elected council, and an elected mayor . . .
.”, N.J.S.A. 40:69A–32(a), and that “unless the explicit terms and context of the statute require
a contrary construction, any administrative or executive functions assigned by general law
to the governing body shall be exercised by the mayor, and any legislative and investigative
functions assigned by general law to the governing body shall be exercised by the
council.” N.J.S.A. 40:69A–32(b).
25.

Pursuant to New Jersey law, a municipality’s decision to both accept as a gift

and locate a monument of great significance is a legislative act.
26.

Accordingly, the City Council appropriately exercised its legislative power

when it passed the Katyn Resolution.

 27.

Consequently, the Mayor has no power to either undermine the City Council’s

validly enacted legislative mandate or unilaterally decide to permanently move the Katyn
Memorial.
28.

It would be ultra vires and a violation of the Faulkner Act if Fulop were

permitted to go through with his plan to permanently move the Katyn Memorial.
SECOND CAUSE OF ACTION
VIOLATION OF THE VISUAL ARTISTS RIGHTS ACT, 17 U.S.C. ¶ 106A
29.

The Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A, grants certain

rights of attribution and integrity to artists such as Plaintiff Pitynski.
30.

VARA grants Plaintiff Pitynski “the right . . . to prevent “distortion, mutilation

or modification of that work.” 17 U.S.C. § 106A(a)(3)(A). That right is explicitly applicable
where the modification of a work of visual art as the result of public presentation, including
lighting and placement, caused by gross negligence.
31.

Defendant, as Mayor of Jersey City, owes certain duties of reasonable care defined

in N.J.S.A. § 40:69A-40, including the enforcement of the charter and ordinances of the
municipality, supervision of the care and custody of all municipal property, making
recommendations concerning the nature and location of municipal improvements, and execution
of improvements determined by the governing body, i.e. the City Council.
32.

Defendant committed a grossly negligent breach of those duties when he decided

without consultation with or presentation of recommendation to the governing body, to modify
the Katyn Memorial by its removal, failed to care for or supervise such removal, and attempted
to diminish the execution of improvements determined by the governing City Council of Jersey
City. Two City Council members, James Solomon, who represents the area of Jersey City where

 the Memorial is located, and Richard Boggiano, have each criticized this decision and voiced
concerns that the Council was not consulted. See Exhibit F.
33.

Moving the Katyn Memorial would violate section 106A(a)(3)(A) of VARA by

violating Plaintiff Pitynski’s right to prevent the modification of his work, and would constitute a
grossly negligent and substantial distortion, mutilation, or modification of the Katyn Memorial
because it is a site specific work. Annual memorial services are held in April by the Katyn Forest
Massacre Memorial Committee every April, which Mayor Fulop attended in April 2016. These
services are made possible by the large public space around the statue. In 2002, the 9/11
Memorial Committee proposed moving the Katyn Memorial statue to allow the placement of a
9/11 memorial in the same space. After testimony from Stanley Paszul, a veteran of the Polish
Underground Army, describing the Katyn Massacre as an act of terrorism similar to that which
happened on 9/11, the committee agreed to leave it in its symbolic place. The location of the
Katyn Memorial is also at the center of the historic Polish population center which existed in
Downtown Jersey City. A contemporaneous article describing this interaction is attached as
Exhibit G.

 REQUEST FOR RELIEF
WHEREFORE, Plaintiffs request judgment against the Defendant as follows:
(a)

Immediate, preliminary, and permanent injunctive relief, enjoining Defendants

from moving the Katyn Memorial;
(b)

Attorney’s fees and costs associated with this action; and

(c)

Any further relief as this Court deems just and proper and any other relief as

allowed by law.
Respectfully submitted,

William Matsikoudis, Esq.
Matsikoudis & Fanciullo, LLC
128 Monticello Ave., STR 1
Jersey City, NJ 07304
Dated: May 8, 2018

DESIGNATION OF TRIAL COUNSEL
Plaintiffs designate William C. Matsikoudis, Esq. and/or Derek S. Fanciullo, Esq. of
Matsikoudis & Fanciullo, LLC, as trial counsel.

William Matsikoudis, Esq.
Matsikoudis & Fanciullo, LLC
128 Monticello Ave., STR 1
Jersey City, NJ 07304
Dated: May 8, 2018

 VERIFICATION

I, Bart Bagniewski, of full age, hereby certify as follows:
1.

I am one of the Plaintiffs in the within action and I have personal knowledge
of the facts and allegations it contains.

2.

I have read the Verified Complaint in this action, and the facts alleged are
true to the best of my knowledge, information and belief.

3.

I verify under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct. 28 U.S.C. § 1746.

_______________________________
Bart Bagniewski
Executed on: May 8, 2018

 VERIFICATION

I, Boguslava Huang, of full age, hereby certify as follows:
1.

I am one of the Plaintiffs in the within action and I have personal knowledge
of the facts and allegations it contains.

2.

I have read the Verified Complaint in this action, and the facts alleged are
true to the best of my knowledge, information and belief.

3.

I verify under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct. 28 U.S.C. § 1746.

_______________________________
Boguslava Wang
Executed on: May 8, 2018

 VERIFICATION

I, Andrzej Pitanski of full age, hereby certify as follows:
1.

I am one of the Plaintiffs in the within action and I have personal knowledge
of the facts and allegations it contains.

2.

I have read the Verified Complaint in this action, and the facts alleged are
true to the best of my knowledge, information and belief.

3.

I verify under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct. 28 U.S.C. § 1746.

_______________________________
Andrzej Pitanski
Executed on: May 8, 2018