Opinion
1578
September 19, 2002.
Judgment, Supreme Court, New York County (Eileen Bransten, J.), entered on or about June 18, 2002, which, in this proceeding pursuant to CPLR article 78 seeking, inter alia, a declaration that the grant of a concession by respondents to nonparty Quincunx to develop an amphitheater on Randall's Island violated the City Charter and the City concession regulations, granted the petition, annulled the award and enjoined the project, unanimously affirmed, without costs.
JOHN SIEGAL, for petitioners-respondents.
LEONARD KOERNER, for respondents-appellants.
Before: Wallach, J.P., Lerner, Rubin, Friedman, Gonzalez, JJ.
We disagree with Supreme Court's determination that the award violated the public trust doctrine (see Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623) on the grounds that it was for a non-park use and constituted an improper alienation of parkland without State legislative approval pursuant to New York City Charter § 383, since the proposed amphitheater is a permissible park use (see 795 Fifth Ave. Corp. v. City of New York, 40 Misc.2d 183, 189-190, affd 20 A.D.2d 850,affd 15 N.Y.2d 221) and the concession agreement was in fact a revocable license terminable at will, rather than a lease (see Miller v. City of New York, 15 N.Y.2d 34, 38). However, we find the award was properly annulled solely on the ground that the concession agreement was not "consistent" with the proposal (see Rules of the City of N.Y. Franchise Concession Review Committee [12 RCNY § 1-12(w)(1)]). Although an agency's application of the regulations it administers is ordinarily entitled to judicial deference, particularly where, as here, the open-ended language of the regulation suggests that it was intended that the agency have broad leeway in exercising its judgment, the agreement in this case was inconsistent with the proposal by any standard since, under the final version of the project, the magnitude of the facility had doubled and the proposed preservation of recreational lawn area, which was apparently also contemplated in the City solicitation, was totally eliminated. Under the circumstances, it was appropriate to reopen the process to seek proposals from entities that might have otherwise responded to the City's solicitation had it initially reflected the type of project ultimately awarded.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.