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220 CPS "Save Our Homes" Association v. New York State Division of Housing and Community Renewal

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 31, 2009

IN RE 220 CPS "SAVE OUR HOMES" ASSOCIATION, ET AL., PETITIONERS-RESPONDENTS,
v.
THE NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, ET AL., RESPONDENTS-APPELLANTS.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered June 9, 2008, which denied respondents' motions to dismiss the petition, unanimously reversed, on the law, without costs, the motions granted, the petition denied and the proceeding brought pursuant to CPLR article 78 dismissed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Andrias, Nardelli, Buckley, DeGrasse, JJ.

106658/07

Petitioners are rent stabilized tenants in a building owned by respondent Madave Properties SPE, LLC. They seek, inter alia, to compel respondent New York State Division of Housing and Community Renewal (DHCR) to conduct an environmental impact study (EIS) pursuant to the State Environmental Quality Review Act (SEQRA) (ECL art 8) in conjunction with its consideration of Madave's application, pursuant to Rent Stabilization Code (RSC) (9 NYCRR) § 2524.5(a)(2), for authorization to refuse to offer renewal leases prior to demolishing the building. The petition fails to state a cause of action.

DHCR's discretion in determining whether to authorize a refusal to offer lease renewals pursuant to RSC § 2524.5(a)(2) is circumscribed by the criteria whether an applicant has established a financial ability to demolish the building, whether plans for the undertaking have been approved by the appropriate city agency, and whether the applicant has complied with the statutory provisions for the relocation of rent stabilized tenants, the reimbursement of moving expenses, and the payment of stipends (see RSC § 2524.5(a)(2)(ii)(a)-(f)). In deciding an RSC § 2524.5(a)(2) application, DHCR is not authorized to consider the environmental concerns detailed in an EIS (see Incorporated Vil. of Atl. Beach v Gavalas, 81 NY2d 322 [1993]). Thus, for SEQRA purposes, DHCR's determination of an RSC § 2524.5(a)(2) application is not an "action" on which the preparation of an EIS is required, but is merely "ministerial" (see ECL § 8-0105[5][ii]; § 8-0109[2]; Gavalas at 326; Matter of Citineighbors Coalition of Historic Carnegie Hill v New York City Landmarks Preserv. Commn., 306 AD2d 113 [2003], appeal dismissed 2 NY3d 727 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090331

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