Abrams v. New York City Transit Authority

• Decision Date: 15 May 1975
• Citation: 48 A.D.2d 69,368 N.Y.S.2d 165
• Parties: Application of Robert ABRAMS, Individually and Borough President of the Bronx and Member of the Board of Estimate et al., Petitioners-Appellants, For a judgment pursuant to Article 78 of the Civil Practice Law and Rules v. NEW YORK CITY TRANSIT AUTHORITY (NYCTA) et al., Respondents-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 165

368 N.Y.S.2d 165

48 A.D.2d 69

Application of Robert ABRAMS, Individually and Borough

President of the Bronx and Member of the Board of Estimate

et al., Petitioners-Appellants, For a judgment pursuant to

Article 78 of the Civil Practice Law and Rules v. NEW YORK CITY TRANSIT AUTHORITY (NYCTA) et al.,

Respondents-Respondents.

Supreme Court, Appellate Division, First Department.

May 15, 1975.

Marcia J. Cleveland, New York City, of counsel (David Schoenbrod, New York City, Lesley Bader, Barbara Jenkins, Jon Mirowitz and Marcia Tompkins with her on the brief), for petitioners-appellants.

James P. McMahon, Brooklyn, of counsel (Helen R. Cassidy, Brooklyn, with him on the brief, John G. de Roos, Brooklyn, and Robert R. Prince, New York City, attorneys), for respondents-respondents.

Before STEVENS, P.J., and MARKEWICH, KUPFERMAN, LUPIANO and CAPOZZOLI, JJ.

LUPIANO, Justice:

As aptly observed by Special Term, (78 Misc.2d 938, 358 N.Y.S.2d 842, Markowitz, J.):

'The stated purpose of this Article 78 proceeding is to compel respondents to comply with the laws controlling noise in the New York City subways. Toward that end, petitioners, as individuals and in various official and representative capacities seek an order directing the New York City Transportation Authority and the Metropolitan Transportation Authority, and their members 'to turn over immediately to petitioner, Robert Abrams' the reports required by certain sections of the Public Authorities Law, and setting down the petition for hearing . . .. The goal to abate subway noise levels is, beyond cavil, meritorious. In the efforts to reach this objective, all those who ride the subways, and respondents, the State and City officials in charge, and the court, no doubt readily join petitioners.'

The threshold issue is whether petitioners have 'a standing to sue'. It is settled law that a petitioner making a general attack on legislative or administrative action or inaction must demonstrate special damages distinct from that suffered by the public at large (Hidley v. Rockefeller, 28 N.Y.2d 439, 322 N.Y.S.2d 687, 271 N.E.2d 530 (1971); Posner v. Rockefeller, 26 N.Y.2d 970, 311 N.Y.S.2d 15, 259 N.E.2d 484 (1970). Thus, in determining whether there is 'a standing to sue', it must be shown that petitioners' personal or property rights will be directly and specifically affected. '(A) private citizen who does not show any special rights or interests in the matter in controversy, other than those common to all taxpayers and citizens, has no standing to sue' (24 Carmody-Wait 2d Section 147:28). The petitioners who represent the parents association contend that they have standing to sue because their school's location in proximity to a subway allegedly affords the requisite special and adverse interest. Special Term correctly declared that 'the very length of the subway system and its proximity to many structures in many places renders this argument not compelling. The class to which all petitioners belong is so broad as to encompass virtually all residents of the City. As such, they have no standing to sue, absent a showing, that some act is being done by (respondents), or is threatened and imminent, which could cause material special injury to them. Petitioners have made no such showing'.

Wein v. City of New York, 47 A.D.2d 367, 366 N.Y.S.2d 885 (1975) cited in the dissent, does not mandate a different result. In that case, we noted that a taxpayer's action for declaratory judgment brought pursuant to General Municipal Law § 51 is a separate and distinct statutory remedy from declaratory judgment actions in general. General Municipal Law § 51, Not involved herein, authorizes actions against public officials 'to prevent any illegal official act . . . or to prevent waste or injury to, or to restore and make good, any property, funds or estate (of the city)'. Under such statute, 'it is the status of the plaintiff as a taxpayer, not a special injury to the particular plaintiff, that gives him the right to sue as a taxpayer' (21 Carmody-Wait 2d Section 128:1; see 21 Carmody-Wait 2d Section 128:38).

Analysis of recent cases discloses a liberalized attitude towards standing, but with continued observation of the requisite showing of personal or property rights that will be directly and specifically affected. Thus, in Matter of Whalen v. Lefkowitz, 36 N.Y.2d 75, 365 N.Y.S.2d 150, 324 N.E.2d 536 (1975), a tenant of an apartment subject to rent control sought to annul the conversion of that part of the Parkchester Housing complex wherein his apartment was situated, to condominium status. The Court of Appeals stated:

'according a condominium status to the quadrant reduces the number and importance of rental tenants, thus diluting their negotiating power as a group and in turn diminishing the strength and significance of each individual tenant, alters profusely the number of fee titleholders of the common interest in the common elements and results in the inevitable disruption that must of necessity follow such an extensive change of operation. Consonant with liberalized attitudes towards standing (see Matter of Douglaston Civic Assn. v. Galvin, 36 N.Y.2d 1, 364 N.Y.S.2d 830, 324 N.E.2d 317; National Organization for Women v. State Div. of Human Rights, 34 N.Y.2d 416, 358 N.Y.S.2d 124, 314 N.E.2d 867), Petitioner's interest in the reorganization of the complex in which he resides, therefore, Is not abstract but personal, real, direct and substantial, conferring standing to challenge the public official's action (Matter of Taylor v. Sise, 33 N.Y.2d 357, 362, 352 N.Y.S.2d 924, 927, 308 N.E.2d 442, 445; Schieffelin v. Komfort, 212 N.Y. 520, 530, 106 N.E. 675, 677; Butler v. Kent, 19 Johns. 223, 226).' (Matter of Whalen v. Lefkowitz, Supra, 36 N.Y.2d at pp. 77--78, 365 N.Y.S.2d at p. 152, 324 N.E.2d at p. 538) (Emphasis supplied).

Patently, in Matter of Whalen v. Lefkowitz, the petitioner's interest afforded a basis for showing threatened special damages distinct from that suffered by the public at large. This conclusion is buttressed by scrutiny of Matter of Douglaston Civic Assn. v. Galvin, 36 N.Y.2d 1, 364 N.Y.S.2d 830, 324 N.E.2d 317, and National Organization for Women v. State Div. of Human Rights, 34 N.Y.2d 416, 358 N.Y.S.2d 124, 314 N.E.2d 867, relied on in Matter of Whalen v. Lefkowitz, Supra.

Matter of Douglaston Civic Assn. v. Galvin, Supra, involved the issue of whether a civic or property owners' association has standing pursuant to section 668e--1.0 of the New York City Administrative Code to contest the grant of a variance. Recognizing that a restrictive view of standing under that statute would preclude the association because it had no Direct property interest in the zoned land, the Court of Appeals opined that there was a 'particular need in zoning cases for a broader rule of standing' (Matter of Douglaston Civic Assn. v. Galvin, Supra, 36 N.Y.2d at p. 6, 364 N.Y.S.2d at p. 834, 324 N.E.2d at p. 320). Thus, a specific broader rule of standing 'entirely consistent with the underlying purposes of our zoning laws' was enunciated as follows:

'It should be readily apparent that a person desiring relaxation of zoning restrictions--such as a change from residential to business--has little to lose and much to gain if he can prevail. He is not reluctant to spend money in retaining special counsel and real estate appraisers if it will bring him the desired result. The individual owner of developed land in the neighborhood, on the other hand, may not, at the time, realize the impact the proposed change of zoning will have on his property, or, realizing the effect, may not have the financial resources to effectively oppose the proposed change. Thus, the neighboring property owners rarely fight as hard for zoning protection as the developer or speculator does for relaxation of zoning restrictions. Against this background of economic disparity, an individual property owner, who stands only to gain (or prevent the loss of) the maintenance of the Status quo as regards the value of his homestead and his peace and quiet, cannot be expected, nor should he be required, to assume by himself the burden and expense of challenging the zoning change. Even if successful, the Aggrieved individual will not be able to recoup his expenditures. By granting neighborhood and civic associations standing in such situations, the expense can be spread out over a number of property owners putting them on an economic parity with the developer' (Matter of Douglaston Civic Assn. v. Galvin Supra, 36 N.Y.2d at pp. 6--7, 364 N.Y.S.2d at p. 834, 324 N.E.2d at p. 320.) (Emphasis supplied).

Based on the economic...