Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Save the View Now v. Brooklyn Bridge Park Corp.

Supreme Court of New York, Second Department

December 27, 2017

Save The View Now, etc., et al., appellants,
v.
Brooklyn Bridge Park Corporation, et al., respondents. Index No. 504875/15

         D54276 G/hu

          Argued - October 20, 2017

          Young/Sommer LLC, Albany, NY (Jeffrey S. Baker and Allyson M. Phillips of counsel), for appellants.

          Sive, Paget & Riesel, P.C., New York, NY (David Paget, Steven Barshov, and Jonathan Kalmuss-Katz of counsel), for respondents Brooklyn Bridge Park Corporation, New York State Urban Development Corporation, doing business as Empire State Development Corporation, and Brooklyn Bridge Park Development Corporation, and Zachary W. Carter, Corporation Counsel, New York, NY (Richard Dearing Michael Pastor, andElinaDruker of counsel), for respondents City of New York and Brooklyn Bridge Park Corporation (one brief filed).

          Herrick, Feinstein LLP, New York, NY (Scott E. Mollen, Avery S. Mehlman, and Adam J. Stein of counsel), for respondents Toll Brothers Real Estate, Inc., and Starwood Mortgage Capital, LLC.

          WILLIAM F. MASTRO, J.P. SHERI S. ROMAN ROBERT J. MILLER FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         Appeals from two orders of the Supreme Court, Kings County (Lawrence Knipel, J.), dated June 10, 2015, and September 21, 2015, respectively. The order dated June 10, 2015, denied the plaintiffs' motion to preliminarily enjoin certain construction allegedly in violation of applicable height limitations. The order dated September2l, 2015, insofar as appealed from, upon renewal of the plaintiffs' motion to preliminarily enjoin certain construction, adhered to the original determination denying that motion, granted the defendants' separate motions pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against each of them as untimely, and denied that branch of the plaintiffs' cross motion which was for leave to amend the complaint.

         ORDERED that the appeal from the order dated June 10, 2015, is dismissed, as that order was superseded by so much of the order dated September 21, 2015, as was made upon renewal; and it is further, ORDERED that the order dated September 21, 2015, is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the defendants appearing separately and filing separate briefs.

         These appeals involve the development of buildings upland of Pier 1 in Brooklyn Bridge Park containing a hotel, restaurant, and residential units. In 2005, Brooklyn Bridge Park Development Corporation (hereinafter BBPD) and Empire State Development Corporation (hereinafter ESD) adopted a General Project Plan for the park which would override local zoning regulations. They conducted an environmental review of the plan under the State Environmental Quality Review Act (ECL art 8; hereinafter SEQRA), during which community members expressed concern that the new development not block the existing views of the Brooklyn Bridge roadbed from the Brooklyn Promenade. The final environmental impact statement (hereinafter FEIS) limited the northern building to a height of 100 feet, and the southern building to a height of 55 feet. The northern building would be substantially similar in height to the existing Cold Storage buildings it would replace and would not significantly block existing views of the Brooklyn Bridge from the Brooklyn Promenade. The FEIS provided that ''[a]ny required parapet and mechanical equipment would be included in the proposed building envelope" BBPD and ESD approved the plan and thereafter adopted a Modified General Project Plan (hereinafter MGPP), which stated that " [t]he residential and hotel uses would be located in two buildings, one of approximately 55 feet and one of approximately 100 feet in height.''

         Brooklyn Bridge Park Corporation (hereinafter BBP) was established to assume responsibility for the planning, construction, maintenance, and operation of the park. In July 2010, the City of New York, ESD, BBPD, and BBP entered into a project agreement. In 2011, BBP released a request for proposals to solicit designs for the buildings. In response to developer questions concerning the height limitations of the M GPP, BBP issued an amendment to the request for proposals, stating that the height limitations would be measured from the base plane and " [t]he height attributed to rooftop mechanical equipment and other Permitted Obstructions will be treated in a manner consistent with the NYC Zoning Resolution, " which generally allows certain permitted obstructions such as bulkheads and mechanical equipment to penetrate maximum height limits. Design proposals were received and community comments were received thereon. On June 19, 2012, the BBP Board selected a developer and approved the execution of development leases. Presentations of the working designs were made to community groups which showed various rooftop structures extending over the height limitations of the MGPP. Following Hurricane Sandy in October 2012, the designs were amended to reflect a higher base plane. Measurement of the buildings was made from the new base plane, thereby raising the height of the buildings an additional approximate four feet.

         Building plans were filed with the Department of Buildings (hereinafter DOB) in March 2013, which showed a 30.1-foot-tall bulkhead on the northern hotel building. Final plans were thereafter submitted to BBP for review. BBP purportedly approved the northern building design plans on July 30, 2013, and ESD purportedly approved them on September 12, 2013. After consultation with ESD, BBP purportedly approved final plans for the southern building on December 4, 2013. Building permits were issued by DOB between December 2, 2013, and June 12, 2014. Construction commenced in July 2013. In September 2013, the project architect presented the final designs to community groups, although revised plans were filed with the DOB thereafter. On September 10, 2014, the northern hotel building reached its maximum height. Around this time, members of the community began to object that the height of the northern hotel building violated the MGPP and was obstructing the view of the roadbed of the Brooklyn Bridge from the Brooklyn Promenade. In response, BBP took the position that construction complied with the height limitations of the MGPP. In late December 2014, the plaintiff Save the View Now was formed. Over the next few months, it met and corresponded with BBP concerning the height limitations, seeking to halt construction of the hotel. As a result, BBP submitted the plans for the southern building to DOB to review for compliance with the Scenic View District. However, it did not take any action with respect to the height limitations of the MGPP, and adhered to its position that the buildings were in compliance with the height limitations.

         On or about April 21, 2015, the plaintiffs commenced this action seeking a judgment declaring, inter alia, that the buildings were being constructed in excess of their height limitations in violation of the MGPP, permanently enjoining construction of any portion of the buildings that violated the M GPP, and directing the defendants to remove any p arts of the buildings which violated the MGPP. The plaintiffs moved for a preliminary injunction halting any construction in excess of the height limitations, as measured from the sidewalk. In an order dated June 10, 2015, the Supreme Court denied the plaintiffs' motion, determining, among other things, that the action was untimely commenced. The defendants thereafter separately moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against each of them as untimely. The plaintiffs cross-moved for leave to renew their motion for a preliminarily injunction and for leave to amend the complaint. In an order dated September 21, 2015, the court granted leave to renew and, up on renewal, adhered to its original determination denying their motion for a preliminary injunction. The court granted the defendants' motions to dismiss the complaint as untimely, and denied that branch of the plaintiffs' cross motion which was for leave to amend the complaint. The plaintiffs appeal.

         An action for a declaratory judgment is generally governed by a six-year statute of limitations (see CPLR213[1]). However, where a declaratory judgment action involves claims that could have been made in another proceeding for which a specific limitation period is provided, the action is subject to the shorter limitations period (see Solnick v Whalen, 49 N.Y.2d 224, 229-230; Town of Hempstead v AJM Capital II, LLC, 130 A.D.3d 607, 608). Where an action could have been brought pursuant to CPLR article 78, the four-month statute of limitations applicable to such proceedings applies (see CPLR217[1]; Matter of Banos v Rhea, 25 N.Y.3d 266, 276; Lenihan v City of New York, 58 N.Y.2d 679, 682; Matter of Sutherland v New York State Dept. of Envtl.

         Conservation,122 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.