MATTER OF CITINEIGHBORS COALITION OF HISTORIC CARNEGIE HILL

• Decision Date: 25 March 2004
• Citation: 2 N.Y.3d 727,811 N.E.2d 2,778 N.Y.S.2d 740
• Parties: In the Matter of CITINEIGHBORS COALITION OF HISTORIC CARNEGIE HILL, by JURATE KAZICKAS et al., as Cochairs, et al., Appellants, v. NEW YORK CITY LANDMARKS PRESERVATION COMMISSION et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

2 N.Y.3d 727

811 N.E.2d 2

778 N.Y.S.2d 740

In the Matter of CITINEIGHBORS COALITION OF HISTORIC CARNEGIE HILL, by JURATE KAZICKAS et al., as Cochairs, et al., Appellants, v. NEW YORK CITY LANDMARKS PRESERVATION COMMISSION et al., Respondents.

Court of Appeals of the State of New York.

Decided March 25, 2004.

Nixon Peabody LLP, New York City (Roger R. Crane, Jr. and Erika J. Duthiers of counsel), for appellants.

Bryan Cave LLP, New York City (Robert S. Davis, Judith M. Gallent and Inger K. Hultgren of counsel), for Tamarkin Co. and another, respondents.

Michael A. Cardozo, Corporation Counsel, New York City (Dona B. Morris, Francis F. Caputo, Mark A. Silberman and

Dana H. Biberman of counsel), for New York City Landmarks Preservation Commission and another, respondents.

Kramer Levin Naftalis & Frankel, LLP, New York City (Jeffrey L. Braun, Michael T. Sillerman and Richard G. Leland of counsel), for Real Estate Board of New York, Inc., amicus curiae.

Christopher Rizzo and Dorothy M. Miner, New York City, for Preservation League of New York State and others, amici curiae.

Jack L. Lester, New York City, for Carnegie Hill Neighbors, Inc., amicus curiae.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

OPINION OF THE COURT MEMORANDUM.

The appeal should be dismissed, with costs, as moot.

On June 10, 2002, the New York City Landmarks Preservation Commission issued a certificate of appropriateness (COA) approving a proposal for 47 East 91st Street, LLC, the property owner, and Tamarkin Co., a real estate developer, to construct an eight-story building with a one-story penthouse atop an existing one-story building located on the northeast corner of Madison Avenue and East 91st Street, which is within the Carnegie Hill Historic District. The Commission issued the COA after a 2½-year review as a consequence of which the property owner and developer twice scaled back their initial proposal. The total projected cost of the work approved by the COA was approximately $36.7 million.

On July 2, 2002, petitioners commenced this CPLR article 78 proceeding to annul the COA. They did not apply for a temporary restraining order or preliminary injunction to halt the highly visible construction work by then underway at the site. Petitioners argued, as relevant on this appeal, that the Commission's issuance of a COA was a discretionary act requiring compliance with the environmental review procedures of the State Environmental Quality Review Act (SEQRA). On January 8, 2003, Supreme Court denied the petition and dismissed the proceeding, concluding that issuance of a COA is a ministerial act exempt from SEQRA. The Appellate Division subsequently affirmed (306 AD2d 113 [1st Dept 2003]), and we granted leave to appeal (100 NY2d 514 [2003]).

"Typically, the doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy" (Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d 165, 172 [2002]). Where the change in circumstances involves a construction project, we must consider how far the work has progressed towards completion. Because a "race to completion cannot be determinative," however, other factors bear on mootness in this context as well. (Id.) "Chief among them has been a challenger's failure to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation" (Dreikausen, 98 NY2d at 173). Also significant are whether work was undertaken without authority or in bad faith, and whether substantially completed work is "readily undone, without undue hardship" (id.). Further, we may elect to retain jurisdiction despite mootness if recurring novel or substantial issues are sufficiently evanescent to evade review otherwise....