Gym Door Repairs, Inc. v.

• Decision Date: 19 December 2013
• Citation: 2013 N.Y. Slip Op. 08496,977 N.Y.S.2d 478,112 A.D.3d 1198
• Parties: In the Matter of GYM DOOR REPAIRS, INC., et al., Appellants, v. NEW YORK CITY DEPARTMENT OF EDUCATION et al., Respondents.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 1198

977 N.Y.S.2d 478

2013 N.Y. Slip Op. 08496

In the Matter of GYM DOOR REPAIRS, INC., et al., Appellants,

v.NEW YORK CITY DEPARTMENT OF EDUCATION et al., Respondents.

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

Dec. 19, 2013.

Ogletree, Deakins, Nash, Smoak & Stewart, PC, New York City (Eric Su of counsel), for appellants.

Michael A. Cardozo, Corporation Counsel, New York City (Michael J. Pastor of counsel), for New York City Department of Education and another, respondents.

Eric T. Schneiderman, Attorney General, Albany (Robert M. Goldfarb of counsel), for New York State Education Department and another, respondents.

Before: ROSE, J.P., LAHTINEN, STEIN and GARRY, JJ.

LAHTINEN, J.

Appeal from a judgment of the Supreme Court (Lynch, J.), entered May 9, 2012 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

In 2001, the Legislature enacted Education Law § 409–f, requiring schools within the state to equip electronically operated partitions with safety devices (L. 2001, ch. 217). Petitioners manufacture, install and maintain such safety devices and have installed about 4,000 statewide. In 2011, petitioners commenced this CPLR article 78 proceeding alleging, among other things, that respondents failed to follow Education Law § 409–f as well as the pertinent regulation ( see8 NYCRR 155.25) and seeking, among other things, an order compelling respondents to comply with the statute and regulation. Respondents moved to dismiss the petition on the ground that petitioners lacked standing. After oral argument, Supreme Court granted respondents' motion in a well-reasoned written decision. Petitioners appeal and we now affirm.

The two-part test for the threshold legal requirement of standing to challenge governmental action requires, first, an injury-in-fact and, second, that the injury “fall[s] within the zone of interests or concerns sought to be promoted or protected by the statutory provision” (New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211, 778 N.Y.S.2d 123, 810 N.E.2d 405 [2004]; see Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 772–773, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [1991]; Davis v. New York State Dept. of Educ., 96 A.D.3d 1261, 1262, 947 N.Y.S.2d 663 [2012] ). Petitioners contend that they have been injured in that their employees might get hurt working on improperly maintained safety devices, they are potentially exposed to litigation if a device installed by them is not properly maintained by respondents and causes injury, and their insurance premiums have increased due to heightened exposure to liability. We agree with Supreme Court that petitioners are essentially asserting a general challenge to respondents' administration of the relevant statute and regulation ( see Matter of Associated Gen. Contrs. of Am., N.Y. State Ch. v. Roberts, 122 A.D.2d 406, 407, 505 N.Y.S.2d 220 [1986] ) and further that their asserted injuries are too speculative and conjectural to satisfy the injury-in-fact requirement ( see New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d at 211–213, 778 N.Y.S.2d 123, 810 N.E.2d 405; Matter of Brunswick Smart Growth, Inc. v. Town of Brunswick, 73 A.D.3d 1267, 1268–1269, 901 N.Y.S.2d 387 [2010]; Matter of Village of Canajoharie v. Planning Bd. of Town of Florida, 63 A.D.3d 1498, 1501–1502, 882 N.Y.S.2d 526 [2009] ).

Even if a sufficient injury-in-fact was asserted, petitioners also failed to show that they are within the zone of interests sought to be protected by the statute and...