Simon v. Foye

• Decision Date: 14 March 2022
• Docket Number: Index 151510/2021
• Citation: 2022 NY Slip Op 30848 (U)
• Parties: BARRY SIMON, PICTURE THE HOMELESS, INC..URBAN JUSTICE CENTER-SAFETY NET PROJECT, Petitioner, v. PATRICK FOYE, SARAH FEINBERG, METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY Respondent.
• Court: New York Supreme Court

2022 NY Slip Op 30848(U)

BARRY SIMON, PICTURE THE HOMELESS, INC..URBAN JUSTICE CENTER-SAFETY NET PROJECT, Petitioner, v. PATRICK FOYE, SARAH FEINBERG, METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY Respondent.

Index No. 151510/2021

Supreme Court, New York County

March 14, 2022

Unpublished Opinion

MOTION DATE 08/03/2021

PRESENT: HON. CAROL EDMEAD, Justice

DECISION + ORDER ON MOTION

HON CAROL EDMEAD, JUSTICE

The following e-filed documents, listed by NYSCEF document number (Motion 002) 20, 21, 22, 25, 26 were read on this motion to/for REARGUMENT/RECONSIDERATION

Upon the foregoing documents, it is

ORDERED AND ADJUDGED that the motion, pursuant to CPLR 2221 (a) of petitioners Barry Simon, Picture the Homeless, Inc. and Urban Justice Center - Safety Net Project (motion sequence number 002) is denied; and it is further

ORDERED that the Clerk of the Court shall enter judgment accordingly and it is further

ORDERED that counsel for respondents shall serve a copy of this order, along with notice of entry, on all parties within ten (10) days.

In this Article 78 proceeding, individual petitioner Barry Simon (Simon) and corporate co-petitioners Picture the Homeless Inc. (PHI) and Urban Justice Center - Safety Net Project (UJC; together, petitioners), move pursuant to CPLR 2221 (a) for leave to renew/reargue the court's June 17, 2021 decision that denied their petition and dismissed this matter (motion sequence number 002). For the following reasons, this motion is denied

BACKGROUND

The court discussed the facts of this case at length in its earlier decision and need not repeat them now. For the purposes of this motion, the portions of the court's decision that petitioners seek to challenge provided as follows:

"As mentioned earlier, SAPA [New York State Administrative Procedure Act] § 205 states that:

'a special proceeding or action may not be maintained unless the petitioner has first requested the agency to pass upon the validity or applicability of the rule in question and action has been taken upon such a request or more than thirty days has elapsed since such request has been filed and no final action has been taken thereon or the agency has not provided for the issuance of such declaratory rulings under section two hundred four.' "Respondents argue that 'despite having the opportunity to do so, Petitioners failed to raise their concerns during the public comment period, or when the NYCTA Board approved the Amended Rules to become permanent, and have thereby failed to exhaust their administrative remedies before filing the Petition.' See respondents' mem of law at 15-17. Cynthia Wilson (Wilson), the MTA's Director of Homeless Outreach Services, specifically states that: 1) respondents published Notices of Emergency/Proposed Rule Making in the New York State Register on May 20, 2020 and August 12, 2020; 2) respondents held a public meeting about the rules on September 23, 2020; and 3) the Notice of Adoption that respondents subsequently published in the New York State Register on October 14, 2020 stated that they had not received any public comments about the rules on any of those occasions. See verified answer, Wilson affirmation, ¶¶ 1^_14. Petitioners reply by citing the second sentence of SAPA § 205, and arguing that, because 'respondents have not provided for the issuance of declaratory rulings in the relevant sections of the Public Authorities Law or anywhere else, . . . petitioners are not required to first seek a declaratory ruling from respondents prior to judicial review.' See petitioners' reply mem at 2-5. Petitioners further observe that 'Section 205, which sets forth in full the administrative remedies petitioners must exhaust prior to judicial review, does not require the submission of comments during the rulemaking process as a prerequisite to obtaining judicial review on a particular issue.' Id. In the court's view, the focus of petitioners' argument is misplaced. It is true that SAPA § 205 provides that 'a special proceeding or action may not be maintained unless the petitioner has first requested the agency to pass upon the validity or applicability of the rule in question . . . or the agency has not provided for the issuance of such declaratory rulings under section two hundred four.' However, petitioners' assertion is belied by the MTA's public website, which links to nearly 5000 declaratory rulings that the agency has issued on a variety of topics. See https://www.ny.gov/agencies/metropolitan-transportation-authority. The MTA has clearly 'provided for the issuance of declaratory rulings,' as mentioned in SAP A § 205. Further, SAP A § 204 (2) (c) only permits an aggrieved party to file an Article 78 petition without first requesting a declaratory ruling from an agency in one of two situations. If a party merely wanted clarity as to 'whether any action by [the agency] should be taken pursuant to a rule,' as described in SAP A § 204 (1) (ii), then that party may file an Article 78 petition without first obtaining a declaratory ruling from the agency. However, if that party was concerned about 'the applicability to any person, property, or state of facts of any rule or statute enforceable by the agency,' as described in SAPA § 204 (1) (i), then it would be incumbent on that party to obtain a declaratory ruling from the agency before s/he could file an Article 78 petition to challenge the rule. Here, it is clear that petitioners' challenges to the three instant rules raise the latter types of concerns. As a result, the court finds that petitioners were required to seek a declaratory ruling from the MTA before they filed the instant Article 78 proceeding, and discounts their facile reply argument as contrary to the plain text of SAPA §§ 205 & 204 (1) (i). Petitioners 'cannot avoid the consequences of [their] failure to exhaust [the available] administrative remedies.' Matter of Mid City Elec. Corp. v Metropolitan Transp. Autk, 148 A.D.3d 497, 498 (1^st Dept 2017), citing Watergate II Apts. v Buffalo Sewer Auth., 46 N.Y.2d 52, 57 (1978). Therefore, the court concludes that the instant Article 78 petition should be dismissed for that reason."

See NYSCEF document 18. Respondents^[1] served and filed a notice of entry of the court's decision on June 17, 2021 - the same day the decision was issued. Id. NYSCEF document 19. Petitioners thereafter filed this motion on July 15, 2021. With the service of opposition and reply papers, this matter is now fully submitted (motion sequence number 002).

DISCUSSION

Petitioners designate their motion as seeking "leave to renew and/or reargue their verified petition." See notice of motion, Wachs affirmation, ¶ 2. However, CPLR 2221 requires moving parties to make different showings in support of motions to renew versus motions to reargue.

Pursuant to CPLR 2221 (e) (2) and (3), "a motion for leave to renew . . . shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination and . . . shall contain reasonable justification for the failure to present such facts on the prior motion" (emphasis added). Such a motion must be based on "material facts which, although extant at the time of the original motion, were not then known to the party seeking renewal and, consequently, were not placed before the court." See Matter of Beiny, 132 A.D.2d 190, 209-210 (1^st Dept 1987), citing Foley v Roche, 68 A.D.2d 558, 568 (1^st Dept 1979). By contrast, under CPLR 2221 (d) (2), "[a] motion for leave to reargue . . . shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion."

Here, petitioners' motion does not refer to any "new facts" that might support a request for leave to renew under CPLR 2221 (e). There is no affidavit of merits from a party competent to discuss the facts of this case, and there is no documentary evidence annexed to it. Instead, petitioners only offer the affirmation of their attorney and their memorandum of law, both of which raise legal arguments (discussed below), but neither of which contains any factual allegations. See notice of motion, Wachs affirmation; petitioners' mem of law. Since this motion does not allege any "new facts . . . that would change the prior determination," the court denies so much of it a seeks relief pursuant to CPLR 2221 (e) for failing to meet the statute's standard of review. Accordingly, the court finds that petitioner's motion should be construed as a request for leave to reargue pursuant to CPLR 2221 (d).

As noted, a motion to reargue may be granted only upon a showing '"that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision.'" William P. Pahl Equip. Corp. v Kassis, 182 A.D.2d 22, 27 (1^st Dept 1992), quoting Schneider v Solowey, 141 A.D.2d 813 (2d Dept 1988). Settled appellate case law holds that "a motion for leave to reargue 'is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented.'" Jaspar Holdings, LLC v Gotham Trading Partners #1, LLC, 186 A.D.3d 582, 584-585 (2d Dept 2020), citing Degraw Constr. Group, Inc. v. McGowan Bldrs., Inc., 178 A.D.3d 772, 773 (2d Dept 2019); Matter of Anthony J. Carter, DDS, P.C v Carter, 81 A.D.3d 819, 820 (2d Dept 2011), quoting McGill v Goldman, 261 A.D.2d 593, 594 (2d Dept 1999). Here, petitioners argue that:

"the court overlooked or

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