Cannon Point Pres. Corp. v. City N.Y.

• Decision Date: 07 May 2020
• Docket Number: 11452-11452A,Index 152692/19
• Citation: 183 A.D.3d 416,123 N.Y.S.3d 587
• Parties: In re CANNON POINT PRESERVATION CORPORATION, et al., Petitioners-Appellants, v. The CITY NEW YORK, et al., Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 416

123 N.Y.S.3d 587

In re CANNON POINT PRESERVATION CORPORATION, et al., Petitioners-Appellants,

v.The CITY NEW YORK, et al., Respondents–Respondents.

11452-11452A

Index 152692/19

Supreme Court, Appellate Division, First Department, New York.

ENTERED: MAY 7, 2020

Gibson, Dunn & Crutcher LLP, New York (Jennifer H. Rearden and Randy M. Mastro of counsel), for appellants.

James E. Johnson, Corporation Counsel, New York (Anna W. Gottlieb of counsel), for municipal respondents.

Letitia James, Attorney General, New York (Ari J. Savitzky of counsel), for State Department of Transportation, respondent.

Manzanet-Daniels, J.P., Mazzarelli, Gesmer, Moulton, JJ.

Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered October 10, 2019, dismissing the action, and bringing up for review an order, same court and Justice, entered on or about September 17, 2019, which denied the petition to annul determinations by various agencies, under, among other laws, the New York State Environmental Quality Review Act that the "East Midtown Esplanade Project" would have no significant adverse environmental impact, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The court correctly found that petitioners' claims pursuant to the New York State Environmental Quality Review Act (SEQRA) ( Environmental Conservation Law § 8–0101 et seq. ) are time-barred, since the four-month statute of limitations began to run upon the end of the public comment period following the issuance of the final SEQRA review, years before this proceeding was brought (see Stop–The–Barge v. Cahill, 1 N.Y.3d 218, 771 N.Y.S.2d 40, 803 N.E.2d 361 [2003] ). It does not avail petitioners to argue that the statute of limitations did not begin to run until the New York City Public Design Commission preliminarily approved the project following its review of design issues (see Matter of Metropolitan Museum Historic Dist. Coalition v. De Montebello, 20 A.D.3d 28, 35–36, 796 N.Y.S.2d 64 [1st Dept. 2005] ).

The court correctly found that the public trust doctrine is inapplicable, since the site at issue was not impliedly designated parkland. Petitioners point to some evidence that the site was treated as parkland, such as communications by respondent New York City Department of Parks and Recreation referring to the site as a "park," but they failed to meet their burden of showing acts and declarations "unmistakable in their purpose and decisive in their...