S. Bronx Unite v. N.Y.C. Indus. Dev. Agency

• Decision Date: 07 April 2016
• Docket Number: 260462/12, 752A, 752.
• Citation: 138 A.D.3d 462,2016 N.Y. Slip Op. 02716,31 N.Y.S.3d 1
• Parties: In re SOUTH BRONX UNITE!, et al., Petitioners–Appellants, v. NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY, et al., Respondents, New York State Department of Transportation, et al., Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 462

31 N.Y.S.3d 1

2016 N.Y. Slip Op. 02716

In re SOUTH BRONX UNITE!, et al., Petitioners–Appellants,

v. NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY, et al., Respondents,New York State Department of Transportation, et al., Respondents–Respondents.

260462/12, 752A, 752.

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

April 7, 2016.

New York Lawyers for The Public Interest, New York (Rachel Spector of counsel), for appellants.

Eric T. Schneiderman, Attorney General, New York (David Lawrence III of counsel), for New York State Department of Transportation, respondent.

Nixon Peabody LLP, New York (Laurie Styka Bloom of counsel), for Fresh Direct LLC and UTF Trucking, Inc., respondents.

Sive, Paget & Riesel, P.C., New York (Steven Barshov of counsel), for Harlem River Yard Ventures, Inc., respondent.

ACOSTA, J.P., RENWICK, MANZANET–DANIELS, KAPNICK, WEBBER, JJ.

Orders, Supreme Court, Bronx County (Mary Ann Brigantti–Hughes, J.), entered June 25, 2014, and August 14, 2015, which denied petitioners' first and second motions, in this hybrid declaratory judgment/ article 78 proceeding, to renew their motion for leave to amend the petition's third cause of action, seeking a declaration that the 2012 sublease between respondents Harlem River Yards Ventures, Inc. and Fresh Direct is invalid, unanimously affirmed, without costs.

The motion court providently exercised its discretion in denying petitioners' renewal motions (see Shine v. Roosevelt Hosp., 26 A.D.3d 204, 809 N.Y.S.2d 45 [1st Dept.2006]

). Petitioners have not pointed to any “new facts not offered on the prior motion that would change the prior determination” to deny the underlying motion for leave to serve a second amended petition (CPLR 2221[e][2] ).

Even assuming that petitioners' purported new facts warrant renewal, the underlying motion would still be subject to denial as futile. On petitioners' prior appeal to this Court, we held that petitioners' allegation that respondent New York State Department of Transportation “must pre-approve a modification of the Land Use Plan is insufficient to confer standing” under State Finance Law § 123–b

, the statutory vehicle for their third cause of action (115 A.D.3d 607, 610, 983 N.Y.S.2d 8 [1st Dept.2014], lv. denied 24 N.Y.3d 908, 2014 WL 5394112 [2014] ). Under the circumstances, there is no substantive difference between the “preapproval” which we have already rejected as insufficient and the “approval” of the sublease, and alleged...