Opinion
Decided February 18, 1999
Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered March 26, 1998, which (1) modified, on the law, and, as modified, affirmed, to the extent appealed from, two orders and judgments (two papers) of the Supreme Court (Joan B. Lobis, J.), entered in New York County, each granting a petition as against respondent New York State Division of Housing and Commun- ity Renewal solely to the extent of granting mandamus relief directing the State Fire Prevention and Building Code Council to convene and consider the issue of whether the State Uniform Fire Prevention and Building Code is more stringent than the New York City Building Code with respect to the location of dry cleaning facilities in mutiple dwelling residential buildings, and denying all other relief requested in the petition including petitioners' request for a preliminary injunction and an order compelling the City and State respondents to comply with State and City laws as they pertain to the preparation of an environmental assessment and environmental impact state- ment, and (2) dismissed as moot cross appeals from said orders and judgments. The modification consisted of denying the mandamus relief directing the Code Council to convene.
Petitioners are residents of two adjacent buildings in Manhattan. They commenced this CPLR article 78 proceeding to prevent the construction and operation of a laundry and dry cleaning establishment at one of the buildings, a "Neo-Renaissance" landmarked building. The district is zoned for mixed, residential and commercial uses. In July 1995, the owner of the building leased the ground floor and basement to respondent White Glove Valet, Inc. (White Glove), which intended to operate the laundry and dry cleaning facility on the premises. After the Landmarks Preservation Commiss- ion determined it had no objections to the project in October 1995, the New York City Department of Buildings (DOB) issued a building permit. In November 1995, DOB sent a notice of revocation of the permit because the plans submitted by White Glove showed a facility larger than 2,000 square feet, exceeding the limit for a Use Group 6 under the New York City Zoning Resolution. After revised plans were submitted demonstrating a floor area of less than 2,000 square feet, DOB rescinded the notice of revocation in a letter dated December 11, 1995. A second notice of revocation was issued by DOB in January 1996, again relating to an improper zoning use, and White Glove again reapplied for a building permit. Meanwhile, White Glove also applied for an operating certificate from the New York City Department of Environmental Protection (DEP), which was required for the installation and operation of its dry cleaning equipment. The application was rejected as incomplete. In December 1995, petitioners filed this article 78 proceeding, with a request for a temporary restraining order. The IAS Court issued a temporary order restraining DEP from granting any permits and approvals for the installation, construction, and operation fo the dry cleaning facility. However, a Justice of Appellate Division modified the temporary restraining order to the extent of allowing White Glove to seek a permit to construct and operate the laundry portion of the establishment.
Petitioners' first cause of action asserted that the respondents' failure to conform the New York City Building Code (City Code) to the more stringent State Uniform Fire Prevention and Building Code (State Uniform Code), which apparantly prohibits dry cleaning facilities in residential multiple dwellings, was arbitrary and capricious, and in violation of the Executive Law and the State Constitution. Petitioners alleged that although the New York State Department of Health and other agencies had issued reports revealing the substantial health hazards to residents posed by the perchloro- ethylene emissions from dry cleaning facilities, no changes in the City Code were ever adopted to bring it in conformity with the State Uniform Code. Accordingly, petitioners demanded that the State Fire Prevention and Building Code Council (Code Council) be compelled to convene and consider this issue. Petitioners' second cause of action alleged that under the State Environmental Quality Review Act (SEQRA) and New York City's Environmental Quality Review (CEQR) procedures, DEP was required to issue an environmental impact statement (EIS) before issuing any permits since the proposed dry cleaning facility would have a significant, adverse effect on air quality. Petitioners demanded that the City and State respondents be compelled to comply with all State and local laws and regulations requiring an environ- menatl assessment, that respondents be permanently enjoined from issuing permits or approvals and that any previously issued permits or approvals be annulled. In opposition to the petition, the Sate respondents asserted that petitioners lacked standing to compel the Code Council to convene, and that the convening of the Council was a discretionary act not subject to mandamus. The City respondents cross-moved to dismiss the peition, arguing that DEP was not required to prepare an EIS in these circumstances because DEP's determination to grant or deny an operating certificate was an official act of a ministerial nature, which acts are specifically exempted from statutory environmental review requirements. The City asserted that DEP's determination was ministerial because the sole criterion for issuance of the operating certificate was satisfaction fo the requirements of the New York City Air Pollution Control Code and the regulations issued by the State Department of Environmental Conservation governing air quality standards.
The IAS Court granted mandamus, required the Code Council to convene to consider whether the City Code was less stringent than the State Uniform Code, and denied petitioners' request for a preliminary injunction.
The Appellate Division concluded, inter alia, that the IAS Court erred in granting mandamus relief compelling the Code Council to convene to determine whether the City Code is less stringent than the Sate Uniform Code because that is a discretionary act, and that petitioners' cross appeals from those portions of the IAS Court's orders refusing to compel DEP to comply with the environmental review provisions of SEQRA and CEQR should be dismissed as moot, since it is undisputed that White Glove has ceased all operations and has surrendered its lease, and there is no agency action left to review.
Matter of Morrison v New York State Div. of Hous. Community Renew- al, 241 AD2d 34, reversed.
Submitted by Nancy Chang, for appellant.
Submitted by Timothy J. O'Shaughnessy, for City respondent.
Submitted by Stephen P. Hightower, for State respondents.
MEMORANDUM:
The order of the Appellate Division should be reversed, without costs, and the matter remitted to Supreme Court with directions to dismiss the petition solely on the ground that the issues presented in this case have become moot.
Inasmuch as White Glove Valet, Inc. has ceased all operations and surrendered its lease, no controversy remains between petitioner and the New York Department of State (successor to respondent Division of Housing and Community Renewal) over the proposed use of the leasehold; the case is moot. The exception to the mootness doctrine is inapplicable here (see, Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714-715; see also, Matter of Gold-Greenberger v. Human Resources Admin., 77 N.Y.2d 973, 974-075). The controversy is not of the type to remain live for a relatively short duration, thereby evading review.
On review of submissions pursuant to section 500.4 of the Rules, order reversed, without costs, and matter remitted to Supreme Court, New York County, with directions to dismiss the petition on the ground that the issues have become moot, in a memorandum.
Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur.