Opinion
INDEX NO. 528164/2019
07-31-2020
HYGRADE GLOVE AND SAFETY COMPANY, YESHIVA B'NAI SHIMON YISROEL, NEIGHBORS ALLIANCE FOR SAFE ENVIRONMENT, INC., Plaintiffs, v. THE CITY OF NEW YORK AND ITS CONSTITUENT MUNICIPAL AGENCIES AND OFFICES INCLUDING THE DEPARTMENT OF SANITATION, Defendants.
NYSCEF DOC. NO. 38 At an IAS Term, Part 22 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 31th day of July, 2020. PRESENT: HON. ROSEMARIE MONTALBANO, Justice. Mot. Seq. No. 1 The following e-filed papers read herein:
| NYCEF Doc # | |
|---|---|
| Notice of Motion/Order to Show Cause/Petition/Cross Motion andAffidavits (Affirmations) Annexed | 8, 12-18 |
| Opposing Affidavits (Affirmations) | 21-33 |
| Reply Affidavits(Affirmations) | 34-36 |
| Memoranda of Law | 11 20 |
Upon the foregoing papers, in this declaratory judgment action, pursuant to CPLR 3001, by plaintiffs Hygrade Glove and Safety Company (Hygrade), Yeshiva B'nai Shimon Yisroel (the Yeshiva), and Neighbors Alliance for Safe Environment, Inc. (Neighbors Alliance) (collectively, plaintiffs) seeking a declaration that no further construction of the Brooklyn Community District 3 Sanitation Garage (the BK3 Garage) may proceed, defendants the City of New York (the City) and its constituent municipal agencies and offices, including the Department of Sanitation (the DSNY) (collectively, defendants) move, under motion sequence number one, for an order, pursuant to CPLR 3211 (a) (5) and (a) (7), dismissing plaintiffs' complaint on the grounds that plaintiffs' claims are barred by the applicable statute of limitations and that plaintiffs have failed to state a cause of action for which relief can be granted.
Facts and Procedural Background
In 2000, the construction in Community District 3 (CD3) of a new sanitation garage was first proposed due to the absence of a sanitation garage in that district. The purpose of the BK3 Garage is to enable the DSNY to assure its efficiency in maintaining timely sanitation services to CD3.
The site for the BK3 Garage is located on Block 1718, Lot 1 (the site), which is approximately 2.46 acres, and is in north central Brooklyn. The site is south of Flushing Avenue, and is bounded by Nostrand Avenue to the east, Park Avenue to the south, and Sandford Street/Warsoff Place to the west. The site is located in an M1-2 zoning district, which permits as-of-right industrial uses. The BK3 Garage is to be a 211,678 square-foot structure with a cellar that will house all DSNY personnel and equipment used in providing sanitation services to CD3, as well as parking spaces for the DSNY's vehicles and staff.
Prior to selecting the site as the location for the BK3 Garage project and acquiring the property for the site, the DSNY was obligated to submit the BK3 Garage project to the City's Uniform Land Use Review procedure (ULURP), a standardized public review procedure mandated by section 197-c of the New York City Charter for certain types of City land use applications, and to assess the potential adverse environmental impacts of the BK3 Garage under the State Environmental Quality Review Act (SEQRA) (see Environmental Conservation Law § 8-0101 et seq.) and its local City counterpart, the Rules of the City of New York governing City Environmental Quality Review (CEQR) (see 62 RCNY 5-01 et seq.).
On June 20, 2000, the DSNY and the Department of Citywide Administrative Services filed a ULURP application with the Department of City Planning (the DCP) for public facility site selection and property acquisition of the site for use as a garage. For purposes of the SEQRA/CEQR review, the DSNY was designated as the lead agency. The DSNY's environmental review included the preparation of an Environmental Assessment Statement (EAS) in 2001 in support of the DSNY's design and site selection for the BK3 Garage. The DSNY was guided by the CEQR Technical Manual, which is a set of guidelines used to ensure consistency in the City's review process and the authoritative guidance for conducting environmental reviews in the City. In July 2001, the DSNY, with assistance from the DSNY's consultant and the City's expert agencies, completed the EAS (the 2001 EAS), which analyzed the BK3 Garage project's potential environmental impacts upon, among other things, traffic, air, quality, noise, and neighborhood character. The 2001 EAS concluded that the BK3 Garage would not have the potential to cause any significant adverse environmental impacts. Following the preparation of the 2001 EAS, the DSNY issued a negative declaration on July 20, 2001, determining that the BK3 Garage project would not have a significant adverse impact on the environment and, therefore, that an Environmental Impact Statement (EIS) was not required. On July 23, 2001, the DCP certified the ULURP application for the BK3 Garage as complete.
On September 10, 2001, Brooklyn Community Board 3 considered and unanimously recommended approval of the ULURP application. Thereafter, on or about November 14, 2001, the then Brooklyn Borough President Howard Golden also recommended approval of the ULURP application. On November 21, 2001, the City Planning Commission (the CPC) held a public hearing on the ULURP application, and on December 5, 2001, the CPC voted to approve the ULURP application. On December 6, 2001, the CPC notified the City Council of its approval of the ULURP application. The City Council did not call the application for a vote and the ULURP application was, therefore, deemed approved.
On October 10, 2003, after obtaining approval by the CPC and the City Council of the ULURP application for the selection of the site for the BK3 Garage, the City commenced a condemnation proceeding to acquire title to the site, and the City ultimately took title to the site in December 2004. Design work on the BK3 Garage and the plans for its construction, however, paused in 2008 due to an economic downturn and serious fiscal issues which were confronting the City at that time. Eight years later, in 2016, funding for the BK3 Garage project was restored, and design work for the BK3 Garage project was resumed.
On May 18, 2018, the Public Design Commission (the PDC) issued final approval for the BK3 Garage design. After final approval by the PDC, the DSNY initiated the contract procurement process for the construction of the BK3 Garage. On March 1, 2019, following a competitive bidding process by sealed bids, the DSNY awarded a contract in the amount of $169,373,773 to MPCC Corp. to construct the BK3 Garage. On July 1, 2019, site preparation activities for the construction of the BK3 Garage began, and they presently remain underway.
Prior to awarding the contract for the construction of the BK3 Garage to MPCC Corp., the DSNY prepared an updated environmental analysis for the BK3 Garage, which was included in a Technical Memorandum, dated February 28, 2019. In the Technical Memorandum, which is 20 pages long with approximately 200 pages of supporting appendices, the DSNY considered, in detail, new information, including the change in the build year for the BK3 Garage, certain proposed changes to the BK3 Garage site plan, changes to legal requirements, updated guidelines for performing an environmental review, and changes to the neighborhood study area, in order to determine whether the BK3 Garage, as updated, would have the potential for a significant adverse impact to the environment and thereby change the conclusion of the 2001 EAS and negative declaration so as to warrant the preparation of a draft EIS.
Following a detailed consideration, the Technical Memorandum sets forth that the DSNY, as the lead agency, concludes that the new information with respect to the proposed BK3 Garage project does not alter the conclusion of the 2001 EAS and negative declaration finding that there was no potential for a significant adverse impact to the environment from the proposed BK3 Garage project, and, therefore, the preparation of a draft EIS was not warranted. By a letter dated March 1, 2019, defendants' counsel provided plaintiffs' counsel with a copy of the notice of award of the contract to MPCC Corp., as well as a copy of the DSNY's Technical Memorandum documenting its environmental review of the updates to the BK3 Garage project.
Plaintiffs consist of Hygrade, the Yeshiva, and Neighbors Alliance. Hygrade has a business and offices at 30 Warsoff Place. The Yeshiva has its private religious school located at 18 Warsoff Place. Neighbors Alliance is a not-for-profit corporation with offices on Flushing Avenue, directly across from the intersection of Flushing Avenue and Warsoff Place.
On March 26, 2004, Hygrade and the Yeshiva, along with others, had previously filed an action, under index No. 8828/04, challenging the negative declaration in the 2001 EAS (the prior action) (see Matter of City of New York, 5 Misc 3d 1014[A], 2004 NY Slip Op 51375[U] [Sup Ct, Kings County 2004], appeal dismissed 32 AD3d 1031 [2d Dept 2006], lv denied 7 NY3d 921 [2006]). In the prior action, Hygrade, the Yeshiva, and others, as the plaintiffs in the prior action, sought a permanent injunction barring the City from condemning the site and preventing the construction of the BK3 Garage, as well as a judgment declaring that the 2001 EAS for the BK3 Garage project was invalid and vacating the DSNY's negative declaration. The plaintiffs in the prior action claimed that the approval of the BK3 Garage project was illegal, fraudulent, and an abuse of discretion as a result of alleged misrepresentations in the DSNY's application and in the approval process. Justice Abraham Gerges dismissed the complaint and petition, finding that the DSNY had met its obligations under SEQRA by taking the requisite hard look at the BK3 Garage and its potential impacts on the environment, and that the DSNY's determination that the BK3 Garage project would not result in any significant environmental impacts was not arbitrary or capricious. In addition, Justice Gerges found that challenges by the plaintiffs therein to the ULURP approval for the BK3 Garage were time-barred because they were brought more than four months after completion of the ULURP process in 2001. Justice Gerges also denied the plaintiffs' demand for a preliminary injunction.
There has also been other related litigation between plaintiffs and defendants regarding the BK3 Garage project.
On June 26, 2019, plaintiffs, as the petitioners therein, filed a CPLR article 78 proceeding against defendants, as the respondents therein, contending that the DSNY's environmental review of the updated BK3 Garage design violated SEQRA and CEQR, and that the BK3 Garage also did not comply with local laws (the CPLR article 78 proceeding). Plaintiffs, in the CPLR article 78 proceeding, also sought a stay of the BK3 Garage project. The court, in a decision and order decided herewith, denied the petition and dismissed the CPLR article proceeding, and also determined that the stay sought in that proceeding was rendered moot.
On December 20, 2019, plaintiffs filed this declaratory judgment action against defendants. Plaintiffs allege, in their complaint, two claims for a declaratory judgment. Their first claim refers to the City's official policy that pertains to the size and siting of City Sanitation Garages, as found in a City publication, the "Citywide Statement of Needs for City Facilities/Fiscal Years 2005 and 2006," prepared by the City's Department of City Planning, Nov. 2003 DCP #03-09 (the 2003 DCP Guidelines). The 2003 DCP Guidelines are an annual report, which is one in a series of annual reports required under New York City Charter § 204. The 2003 DCP Guidelines provide that they, "[a]long with the Criteria for the Location of City Facilities (the Fair Share Criteria), . . . [are] part of a planning process in which communities are informed at the earliest possible stage of the [C]ity's needs for facilities and the specific criteria for selecting the locations of those facilities." Plaintiffs allege that defendants' failure to follow or even consider the 2003 DCP Guidelines invalidates the construction of the BK3 Garage. They seek a declaratory judgment that the BK3 Garage was in violation of the siting and sizing criteria of the 2003 DCP Guidelines, that the BK3 Garage project is invalid, and that any construction work on the site must immediately cease.
Plaintiffs claim that the instant declaratory judgment was necessitated because Justice Reginald A. Boddie (who the CPLR article 78 proceeding was formerly before) refused their attorney's request to enter the 2003 DCP Guidelines into the record in the CPLR article 78 proceeding.
Plaintiffs' second claim in their complaint alleges that there have been significant updates and changes in the design of the BK3 Garage project that have led to violations of the 2003 DCP Guidelines, which necessitate that the ULURP application and process begin anew. Plaintiffs seek a declaratory judgment that this final redesign violates ULURP and that defendants be directed to re-file the ULURP application for the BK3 Garage project and obtain a new ULURP approval. On February 14, 2020, defendants filed their instant motion to dismiss plaintiffs' complaint.
Following defendants' service of their motion and papers in support of their motion, plaintiffs, in opposition, have submitted the affirmation of their attorney, Lawrence B. Goldberg, Esq. (Mr. Goldberg) and a memorandum of law in opposition to defendants' motion. Plaintiffs assert therein that many important facts were unknown to them when they prepared their complaint, dated December 30, 2019, because defendants did not produce all of the documents pertaining to the BK3 Garage project. Plaintiffs state that this was despite repeated Freedom of Information Law (FOIL) requests by them in 2016 and 2017 and a CPLR article 78 proceeding filed by Hygrade in 2017 seeking pre-action discovery about the present status of the final design of the BK3 Garage and an order requiring the DSNY to preserve documents relating to the BK3 Garage. The petition in that proceeding was opposed by the City, which maintained that it had made a full production of all documents, and after oral argument on September 22, 2017, Justice Reginald A. Boddie dismissed the petition, without prejudice to renew with specific document requests.
Plaintiffs assert that they have submitted Mr. Goldberg's affirmation to cure pleading deficiencies in their complaint due to a lack of information at the time it was prepared. Plaintiffs claim that there was no production by the City showing that there was ever a Fair Share analysis performed as part of the ULURP, as required by section 203 of the New York City Charter. Plaintiffs state that they are alleging a cause of action for a flagrant disregard of the Fair Share Criteria. They maintain that their complaint may be read to seek relief for a declaratory judgment that the City violated their obligations under the Fair Share provisions of the New York City Charter, and to compel defendants' consideration of the Fair Share obligations.
Pursuant to New York City Charter § 203 (a), the Fair Share Criteria are "designed to further the fair distribution among communities of the burdens and benefits associated with city facilities, consistent with community needs for services and efficient and cost effective delivery of services and with due regard for the social and economic impacts of such facilities upon the areas surrounding the sites."
In reply to plaintiffs' claim that there was no production by the City showing a Fair Share analysis as part of the ULURP, defendants have annexed a copy of the Fair Share analysis for the BK3 Garage as exhibit G to the reply affirmation of Shiva Prakash, dated March 27, 2020. Defendants point out that the DSNY did, in fact, complete a Fair Share analysis as part of the ULURP review for the BK3 Garage in July 2001. Defendants point out that this Fair Share analysis explained the reasons for relocating the existing sanitation garage serving CD3 and evaluated all relevant criteria, as provided in the New York City Charter's Fair Share provisions, for the siting of the proposed BK3 Garage.
The court must now address defendants' motion, which contends that plaintiffs' claims are time-barred and fail to state a viable claim. Plaintiffs oppose defendants' motion.
Discussion
In support of their motion, defendants contend that this action is time-barred by the four-month statute of limitations applicable to CPLR article 78 proceedings (see CPLR 217). Plaintiffs, in opposition, contend that this action is not time-barred. They argue that the six-year limitations period for a declaratory judgment action applies, rendering this action timely.
"In order to determine the Statute of Limitations applicable to a particular declaratory judgment action, the court must 'examine the substance of that action to identify the relationship out of which the claim arises and the relief sought'" (Matter of Save Pine Bush v City of Albany, 70 NY2d 193, 202 [1987], quoting Solnick v Whalen, 49 NY2d 224, 229 [1980]). "If the court determines that the underlying dispute can be or could have been resolved through a form of action or proceeding for which a specific limitation period is statutorily provided, that limitation period governs the declaratory judgment action" (Matter of Save Pine Bush, 70 NY2d at 202; see also Press v County of Monroe, 50 NY2d 695, 701 [1980]; Solnick, 49 NY2d at 230).
"A primary difference between CPLR article 78 proceedings and declaratory judgment actions is the presence or absence of a judicially-imposed remedial order" (Matter of Dandomar Co., LLC v Town of Pleasant Val. Town Bd., 86 AD3d 83, 89 [2d Dept 2011]). "In a declaratory judgment action, the court does not direct a party to do an act or refrain from doing an act," but, rather, "the court merely declares the prevailing party's rights with respect to the matter in controversy for the purpose of guiding future conduct" (id.). Here, plaintiffs seek the relief of halted construction and commencement of a new ULURP review process. Since this prayer for relief seeks to force defendants to both refrain from and perform actions, it falls within the purview of a CPLR article 78 proceeding, which has a four-month statute of limitations (see CPLR 217).
Although plaintiffs filed this action as a declaratory judgment action on December 30, 2019, the nature of their underlying claims is that the BK3 Garage was allegedly required to be sited in accordance with the 2003 DCP Guidelines and that the change since 2001 in the updated final design of the BK3 Garage project required a new ULURP approval. Plaintiffs assert that defendants failed to at least consider the 2003 DCP Guidelines and their Fair Share obligations in the final design of the BK3 Garage project, and they are seeking to compel defendants to consider their Fair Share obligations, including the 2003 DCP Guidelines. While plaintiffs argue that they are asserting a declaratory judgment claim because they are seeking a declaration that the BK3 Garage project violated ULURP due to the absence of a Fair Share analysis and that their claim is essentially one claiming a flagrant disregard of Fair Share Criteria, it has been specifically held that a proceeding challenging the City's failure to conduct a Fair Share analysis is in the nature of mandamus, rendering the four-month statute of limitations of CPLR article 78 proceedings applicable (see Rowe v City of New York, 162 Misc 2d 683, 689 [Sup Ct, NY County 1994]). Thus, plaintiffs' claims should have been filed as a CPLR article 78 proceeding. Plaintiffs' attempt to recast their claims in the guise of a declaratory judgment action does not extend the four-month statute of limitations period for a CPLR article 78 proceeding (see Matter of Dandomar Co., LLC, 86 AD3d at 90).
With respect to the time when plaintiffs' claims accrued, the ULURP review required for selecting the site for the BK3 Garage was finalized and approved on December 26, 2001. Therefore, a claim challenging the siting determination and the reviews conducted therein had to have been filed within four months of December 26, 2001, i.e., no later than April 26, 2002. Thus, insofar as plaintiffs attempt to assert such a claim, it is time-barred. In fact, as discussed above, Justice Gerges, in his decision and order in the prior action, dated November 10, 2004, previously ruled that the earlier challenge to the ULURP review and accompanying siting determination for the BK3 Garage, which did not raise the issue of the Fair Share determination, was time-barred due to the four-month statute of limitations for CPLR article 78 proceedings (Matter of City of New York, 2004 NY Slip Op 51375[U], *13).
Insofar as plaintiffs challenge the updated final design of the BK3 Garage, plaintiffs admit, in paragraph 18 of their complaint, that they had actual knowledge of the final design of the BK3 Garage as of March 1, 2019 since they allege that notification of the final design was given by defendants' attorney to their attorney when he received a copy of the February 28, 2019 Technical Memorandum on March 1, 2019. As discussed above, the Technical Memorandum assessed and analyzed all of the proposed changes to the BK3 Garage, including the updated final design of the BK3 Garage, and concluded that, as updated, the BK3 Garage would not have any potential for significant adverse impacts on the environment. Plaintiffs also acknowledge that a copy of the notice of award of the construction contract to MPCC Corp. for the BK3 Garage was mailed to their attorney on March 1, 2019. Therefore, plaintiffs had actual notice no later than March 1, 2019 that the DSNY had issued the Technical Memorandum which, among other things, assessed the environmental impacts of the updated final design of the BK3 Garage and that the DSNY had issued a notice of award to MPCC Corp. for the construction contract for the BK3 Garage. Since plaintiffs failed to file this action until December 30, 2019, this claim is untimely filed, and, therefore, time-barred by the applicable four-month statute of limitations (see CPLR 217).
Plaintiffs contend, however, that even applying the four-month limitations period applicable to CPLR article 78 proceedings, this action, as one to compel a City action, started to run, at the earliest, on November 8, 2019. Plaintiffs base this November 8, 2019 accrual date on their assertion that they discovered the 2003 DCP Guidelines in November 2019 and demanded that the City consider them on November 7, 2019, and that on November 8, 2019, Justice Reginald A. Boddie refused to allow the introduction of the 2003 DCP Guidelines in the CPLR article 78 proceeding. While plaintiffs acknowledge that the 2003 DCP Guidelines are nonbinding guidelines and discretionary (see Community Planning Bd. No. 4 [Manhattan] v Homes for the Homeless, 158 Misc 2d 184, 191 [Sup Ct, NY County 1993]), they assert that defendants were required to consider them. They contend that as an action to compel, the time to bring this action commenced when they made their demand to defendants that they consider the 2003 DCP Guidelines and defendants refused their demand. They also contend that their claim could not have accrued until they knew defendants' definitive position, and that they did not know their definitive position due to defendants' failure to comply with their FOIL requests and not previously disclosing the 2003 DCP Guidelines. They argue that since this action was filed on December 30, 2019, this was within the four-month limitations period from their November 7, 2019 demand upon defendants.
Plaintiffs' argument is rejected. Plaintiffs' discovery of the 2003 DCP Guidelines is irrelevant to the accrual date of their claims. The BK3 Garage was not one of the five proposed DSNY garage projects referenced in the 2003 DCP Guidelines. The siting of the BK3 Garage was proposed, reviewed, and approved in-2001, significantly prior to the November 2003 issuance of the 2003 DCP Guidelines, which pertained to 2005-2006 Siting Criteria. Moreover, while plaintiffs argue that the 2003 DCP Guidelines should have been considered with respect to the final design of the BK3 Garage, the 2003 DCP Guidelines involve the criteria for the selection of the location of a site of a facility, not the impact of the design changes, which was addressed by the Technical Memorandum. Furthermore, once the siting determination of the BK3 Garage was approved through ULURP, it was a final determination, and, as discussed above, plaintiffs' claim as to the siting determination accrued in 2001 (see Matter of Douglaston & Little Neck Coalition v Sexton, 145 AD2d 480, 480-481 [2d Dept 1988]). There was no fraud or deception by defendants, and there is no valid basis to extend the statute of limitations (see generally Matter of Green Harbour Homeowners' Assn. v Town of Lake George Planning Bd., 1 AD3d 744, 746 [3d Dept 2003]).
Plaintiffs further argue that the statute of limitations should be tolled due to misleading information about the extent of the design changes to the BK3 Garage. This argument is unavailing since plaintiffs, as discussed above, had actual notice of the design changes upon receiving the Technical Memorandum on March 1, 2019.
Plaintiffs' arguments regarding the Technical Memorandum are addressed in the CPLR article 78 proceeding.
Thus, plaintiffs' complaint is time-barred. Defendants' motion, insofar as it seeks dismissal of plaintiffs' complaint, pursuant to CPLR 3211 (a) (5), is, therefore, mandated. In view of this determination, it is unnecessary to reach defendants' contentions regarding plaintiffs' failure to state a viable cause of action.
The court notes that to the extent that plaintiffs purport to now allege that there was a flagrant disregard of Fair Share Criteria on the basis that no Fair Share analysis was ever performed, this fails to state a viable cause of action since, as discussed above, defendants, by their submission of exhibit G to the reply affirmation of Shiva Prakash, dated March 27, 2020, have shown that the DSNY did, in fact, complete a Fair Share analysis as part of the ULURP review for the BK3 Garage in July 2001.
Conclusion
Accordingly, defendants' motion for an order, dismissing plaintiffs' complaint is granted, pursuant to CPLR 3211 (a) (5), based on the ground that plaintiffs' claims are time-barred by the applicable statute of limitations.
This constitutes the decision, order, and judgment of the court.
ENTER,
/s/
J. S. C.