In the Matter of Bernard Shapiro, et al., petitioners/ plaintiffs-appellants,
Len Torres, et al., respondents/ defendants-respondents. Index No. 5044/15
- May 26, 2017
Schlesinger LLP, Garden City, NY (Maureen T. Liccione and
Robert V. Guido of counsel), for
Agostini, Corporation Counsel, Long Beach, NY, and Forchelli,
Curto, Deegan, Schwartz, Mineo & Terrana, LLP, Uniondale,
NY (Jeffrey D. Forchelli, William F. Bonesso, Richard A.
Blumberg, and Danielle E. Tricolla of counsel), for
respondents/defendants-respondents (one brief filed).
REINALDO E. RIVERA, J.P. L. PRISCILLA HALL BETSY BARROS
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
hybrid proceeding pursuant to CPLR article 78, inter alia, to
review a determination of the City Council of the City of
Long Beach dated March 3, 2015, to award contracts for the
construction of comfort stations along the City of Long Beach
boardwalk, and action for a judgment declaring that the
construction of a structure known as the Lincoln Boulevard
Comfort Station is a prohibited use of a public street and
related injunctive relief, the petitioners/plaintiffs appeal,
as limited by their brief, from so much of an order and
judgment (one paper) of the Supreme Court, Nassau County
(Mahon, J.), entered September 25, 2015, as, upon denying
their motion for a preliminary injunction, in effect,
determined that the construction of the structure known as
the Lincoln Boulevard Comfort Station is not a prohibited use
of a public street, denied the petition, and dismissed the
that the order and judgment is modified, on the law, by
deleting the provision thereof, in effect, dismissing the
action, and adding thereto a provision declaring that the
construction of the structure known as the Lincoln Boulevard
Comfort Station is a permitted use of a public street; as so
modified, the order and judgment is affirmed insofar as
appealed from, with costs to the respondents/defendants.
hybrid proceeding and action, the petitioners/plaintiffs
(hereinafter the petitioners) sought, inter alia, to review a
determination of the City of Long Beach to award contracts
for the construction of comfort stations along the city
boardwalk as part of a plan to reconstruct the boardwalk and
restroom facilities that had been destroyed by Hurricane
Sandy. The comfort station at issue would be installed in a
"bump out" that extended into the southern end of
Lincoln Boulevard, opposite the ocean side of the boardwalk,
adjacent to the petitioners' condominium complex. The
petitioners alleged that the City violated the mandates of
the State Environmental Quality Review Act (ECL art 8;
hereinafter SEQRA) and article 17 of The Charter of the City
of Long Beach (Charter of the City of Long Beach §
330) and interfered with their easement of light, air, and
access. The Supreme Court, upon denying the petitioners'
motion for a preliminary injunction, in effect, determined
that the construction is not a prohibited use of a public
street, denied the petition, and dismissed the hybrid
proceeding and action. The petitioners appeal, and we modify.
establish standing under SEQRA, a petitioner must show (1) an
environmental injury that is in some way different from that
of the public at large, and (2) that the alleged injury falls
within the zone of interests sought to be protected or
promoted by SEQRA" (Matter of Brummel v Town of N.
Hempstead Town Bd., 145 A.D.3d 880, 881-882). The
alleged harm cannot be "too speculative and conjectural
to demonstrate an actual and specific injury-in-fact"
(Matter of Kindred v Monroe County, 119 A.D.3d 1347,
1348). Close proximity alone is insufficient to confer
standing where there are no zoning issues involved, and
general environmental concerns will not suffice (see
Matter of Sun-Brite Car Wash, Inc. v Board of Zoning
& Appeals of Town of N. Hempstead, 69 N.Y.2d 406,
410; Matter of Kindred v Monroe County, 119 A.D.3d
1347; Matter of Save Our Main St. Bldgs. v Greene County
Legislature, 293 A.D.2d 907; Matter of Oates v
Village of Watkins Glen, 290 A.D.2d 758, 761). Moreover,
"[t]o qualify for standing to raise a SEQRA challenge, a
party must demonstrate that it will suffer an injury that is
environmental and not solely economic in nature"
(Matter of Mobil Oil Corp. v Syracuse Indus. Dev.
Agency, 76 N.Y.2d 428, 433). Here, the petitioners'
alleged environmentally related injuries are too speculative
and conjectural to demonstrate an actual and specific
injury-in-fact (see Matter of Brummel v Town of N.
Hempstead Town Board, 145 A.D.3d at 881-882; Matter
of Shelter Is. Assn. v Zoning Bd. of Appeals of Town of
Shelter Is., 57 A.D.3d 907).
lands adjoin private property an easement of light, air and
access over such property does not exist, under ordinary
circumstances, merely because of the proximity of the lands
to the private property" (St. Peter's Italian
Church Syracuse v State of New York, 261 A.D. 96, 97).
However, an owner of land abutting a highway or street
possesses, as incident to his or her ownership, easements of
light, air, and access, irrespective of whether the owner
owns the fee of the highway or the street itself (see
Matter of Scoglio v County of Suffolk, 85 N.Y.2d
709, 712; Regan v Lanze, 40 N.Y.2d 475, 482;
Donahue v Keystone Gas Co., 181 NY 313, 316;
Lahr v Metropolitan Elevated Railway Co., 104 NY
268, 291; Griefer v County of Sullivan County, 246
A.D. 385, affd 273 NY 515). Nevertheless,
"[w]hen the fee of the highway has been transferred to
the State, the State may use the highway for any public
purpose not inconsistent with or prejudicial to its use for
highway purposes . . . [and] [t]he mere disturbance of the
rights of light, air and access of abutting owners on such a
highway by the imposition of a new use, consistent with its
use as an open public street, must be tolerated by them and
no right of action arises therefrom, although such use
interferes with the enjoyment of the premises"
(Perlmutter v Greene, 259 NY 327, 299-330 [citation
omitted]; see Sauer v New York, 206 U.S. 536,
547-548; Jones Beach Blvd. Estate, Inc. v Moses, 268
NY 362, 368; Lahr v Metropolitan El. Co., 104 NY at
291; Aero Drive-In Inc. v Town of Cheektowaga, 140
A.D.2d 932). For example, the maintenance of trees on a
street for the purposes of ornament and shade has been
determined to be a proper street use (see Donahue v
Keystone Gas Co., 181 NY at 315).
the proposed construction will not completely block the
petitioners' ocean view nor prevent the petitioners from
using the public street. Rather, the length of the dead-end
street will be shortened and several public parking spaces
will be removed. The turnaround will still be intact,
although moved 23 feet to the north, and access to the
petitioners' driveway and building's entrance will
not be impeded (see Perlmutter v Greene, 259 NY at
333). In addition, the disputed comfort station will be open
to, and for the purpose of, serving the public (cf.
Peterson v City of New York, 260 NY 156, 161).
the Supreme Court properly, in effect, determined that the
construction is not a prohibited use of a public street,
denied the petition, and dismissed the proceeding. Since this
is, in part, a declaratory judgment action, the order and
judgment should have included a provision declaring that the
construction is a permitted use of a public street (see
Lanza v Wagner, 11 N.Y.2d317).
petitioners' remaining contentions have been rendered