(1980) (no citizen-taxpayer standing to challenge nonfiscal
activities of municipal government agencies).
For the reasons stated above, plaintiffs have no standing to
raise their third cause of action and it must be dismissed.
Plaintiffs' motion for summary judgment is correspondingly
IV. Violation of NYC IDA Regulations and Policies.
In the fourth cause of action, plaintiffs claim that NYC IDA
arbitrarily and capriciously violated its own regulations and
policies by, inter alia: (1) considering the Project without
expressions of interest by prospective tenants of at least 50%
of the floor area; (2) failing to obtain pre-lease agreements
from the prospective tenants of at least 50% of the floor area;
(3) participating in a retail project without the City applying
for Urban Development Action Grants; and (4) participating in
the project unless the project would not be economically
feasible without industrial bond financing and benefits.
Complaint ¶ 97. Defendants move to dismiss on the basis that
plaintiffs have no standing to raise these objections; that the
rules are an unpublished, non-binding internal policy of NYC
IDA; and that, in any event, the applicable rules were complied
with. See Def.Mem. I at 51-55; Doherty Aff. at ¶¶ 11-14; New
York City Industrial Development Agency, Commercial Project
Policy, attached as Exhibit B to Doherty Aff., at 2. In
response, plaintiffs appear to abandon those arguments and
focus instead on the original Request for Proposals which
provided that the developer would not seek a tax exemption.
Pl.Mem. I at 51-52. However, the first page of that Request,
dated February 1985, states that "Sponsor reserves the right,
in its sole discretion, to negotiate and dispose of the Site on
terms other than those set forth herein." Harris Supp.Aff.,
Exh. A at 1. Defendants point out that since that date, the
Project has had to be restructured and reduced by .5 million
sq. ft. because of, inter alia, a ruling in Municipal Art
Society, supra at n. 3, challenging the zoning bonus grant that
was part of the original Project plans. 137 Misc.2d 832, 522
N.Y.S.2d 800 (1987). At that stage, NYC IDA's participation in
the commercial portion was proposed in order to make the
revised Project economically feasible. Doherty Aff.Exh. A at 5.
Plaintiffs offer no evidence, documentary or testamentary, to
rebut defendants' prima facie showing that the administrative
determination to alter the no-tax-exemption aspect of the
Request For Proposals was not arbitrary and capricious. They
merely state their disbelief that NYC IDA's assistance is
necessary to the Project in light of the prime value of the
underlying real estate at Columbus Circle. Pl.Mem. I at 52 ("to
say that the development is not feasible without IDA assistance
is, bluntly, hogwash"). Such expressions of doubt, however
intuitively appealing, are insufficient to meet plaintiffs'
shifted burden of showing the presence of genuinely disputed
factual issues. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at
2510 (1986). This Court will not review the wisdom of a
considered decision by NYC IDA on such a basis. See Grossman v.
Herkimer County Indus. Dev. Agency, 60 A.D.2d 172, 400 N.Y.S.2d
623, 626 (4th Dep't 1977) (whether or not IDA project resulted
in optimum use of site is immaterial as long as project was
within scope of IDA's purposes and powers).
The Court will grant summary judgment to defendants on this
fourth cause of action for the reasons stated above.
V. Violation of Conflict-of-Interest Laws.
Plaintiffs claim in their fifth cause of action that a former
MTA employee, Robert Selsam, represented Boston Properties
before the MTA in connection with this Project within two years
of the end of his MTA service. Complaint ¶ 103. They also
allege that during his tenure at the MTA, Selsam participated
in the planning for the improvement of the 59th Street-Columbus
Circle subway station which was to be required of the developer
of the Coliseum site. Id. at ¶ 104. Plaintiffs assert that this
action violates New York's Public Officers Law (hereinafter
"POL") § 73(7) and
requires annulment of the New Purchase Agreement. Defendants
reply that the claim is time-barred, that the allegations are
substantively untrue, and that even if true, such a conflict of
interest would not void the entire Project.
Article 73 of New York's POL provides in relevant part:
No . . . state officer or employee, other than in
the proper discharge of official duties, . . .
shall receive, directly, or indirectly, or enter
into any agreement express or implied for, any
compensation, in whatever for, for the appearance
or rendition of services by himself or another in
relation to any case, proceeding, application or
other matter before a state agency where such
appearance or rendition of services is in
(i) the purchase, sale, rental or lease of real
property, goods or services, or a contract
therefor, from to or with any such agency . . ..
§ 73(7)(a).*fn18 A violation of Section 73 may be punished as
a misdemeanor. § 73(14); N.Y. State Urban Development Corp. v.
Vanderlex Merchandise Co., 98 Misc.2d 264, 413 N.Y.S.2d 982,
989 (N.Y. Sup. Ct. 1979). The Vanderlex court indicated that
although in some instances corrupt practices may render
contracts void or voidable, such practices would not operate to
void the legislative act of any agency. Id. In this instance,
the defendants' resolutions of May 4, 9, and 10, 1989,
approving the Project, were legislative, rather than
adjudicative, acts. Id. (citing Matter of Kew Gardens
Sanitarium, Inc. v. Whalen, 55 A.D.2d 226, 228, 390 N.Y.S.2d
256, 258 (3d Dep't 1976), Aff'd 43 N.Y.2d 675, 401 N.Y.S.2d 65,
371 N.E.2d 827 (1977)). As the Vanderlex court stated:
It is difficult to see how the "legislation" of a
public corporation pursuant to which public
agencies have acted, millions of dollars have been
spent and the character of an area, neighborhood
or even a whole City has been altered can be
halted or reversed because of a violation of
Section 73 or 74 of the Public Officers Law.
413 N.Y.S.2d at 989.