Weeks Woodlands Ass'n, Inc. v. Dormitory Auth. of State

• Citation: 945 N.Y.S.2d 263,95 A.D.3d 747,2012 N.Y. Slip Op. 04209
• Parties: In re WEEKS WOODLANDS ASSOCIATION, INC., et al., Petitioners–Appellants, v. DORMITORY AUTHORITY OF the STATE of New York, et al., Respondents–Respondents.
• Decision Date: 31 May 2012
• Court: New York Supreme Court — Appellate Division

95 A.D.3d 747

945 N.Y.S.2d 263

2012 N.Y. Slip Op. 04209

In re WEEKS WOODLANDS ASSOCIATION, INC., et al., Petitioners–Appellants,

v.DORMITORY AUTHORITY OF the STATE of New York, et al., Respondents–Respondents.

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

May 31, 2012.

Albert K. Butzel, New York, for appellants.

Wachtel & Masyr, LLP, New York (Karen Binder of counsel), for Dormitory Authority of the State of New York, St. Mary's Hospital for Children, Inc. and St. Mary's Healthcare System for Children, Inc., respondents.

Eric T. Schneiderman, Attorney General, New York (Simon Heller of counsel), for New York State Department of Health, respondent.

Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of counsel), for municipal respondent.

SAXE, J.P., FRIEDMAN, CATTERSON, FREEDMAN, MANZANET–DANIELS, JJ.

Appeals from order, Supreme Court, New York County (Emily Jane Goodman, J.), entered January 18, 2011, which, to the extent appealed from as limited by the briefs, denied petitioners' motion for a preliminary injunction and granted the cross motion of respondent New York State Department of Health to dismiss the petition as against it, and from order and judgment (one paper), same court and Justice, entered August 9, 2011, which to the extent appealed from as limited by the briefs, granted the motion of respondent Dormitory Authority of the State of New York for summary judgment declaring that it had the authority to provide financing for the subject construction project, denied petitioners' motion to renew, granted the cross motion of respondent New York City Department of Buildings for summary judgment dismissing the proceeding as against it, and denied petitioners' motion for summary judgment with respect to the applicability of section 24–111(a) of the Zoning Resolution of the City of New York, dismissed, without costs, as moot.

Petitioners seek to enjoin a construction project to modernize a hospital for disabled children operated by a not-for-profit corporation, based primarily on alleged noncompliance with zoning requirements. Petitioners concede that they did not seek injunctive relief against the project going forward upon their appeal to this Court from Supreme Court's denial of their motion for a preliminary injunction. It now appears that the excavation, foundation walls, steel superstructure, concrete slabs, metal stud frames and duct work are complete. We see no evidence that the work was performed in bad faith, and the work completed could not be readily undone without undue hardship. While we would adopt the dissent's cogent analysis of the zoning issue if we were to reach the merits, in view of petitioners' failure to seek injunctive relief from this Court and the advanced stage of work on the project, we find that the appeal has become moot and therefore must be dismissed ( see Matter of Citineighbors Coalition of Historic Carnegie Hill v. New York City Landmarks Preserv. Commn., 2 N.Y.3d 727, 778 N.Y.S.2d 740, 811 N.E.2d 2 [2004];Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d 165, 746 N.Y.S.2d 429, 774 N.E.2d 193 [2002];Sutherland v. New York City Hous. Dev. Corp., 61 A.D.3d 479, 479–480, 877 N.Y.S.2d 43 [2009],lv. denied13 N.Y.3d 703, 2009 WL 2762552 [2009];William Israel's Farm Coop. v. Board of Stds. & Appeals of City of N.Y., 25 A.D.3d 517, 812 N.Y.S.2d 5 [2006] ).

The dissent is mistaken in asserting that the Court of Appeals' decisions in Citineighbors and Dreikausen support the position that this appeal is not moot. At the same time that it recognized that “a race to completion cannot be determinative [of mootness]” ( Dreikausen, 98 N.Y.2d at 172, 746 N.Y.S.2d 429, 774 N.E.2d 193), the Court of Appeals identified as the “[c]hief” factor in the mootness inquiry “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” ( id. at 173, 746 N.Y.S.2d 429, 774 N.E.2d 193). In this case, to reiterate, after Supreme Court denied their motion for a preliminary injunction, petitioners sought no injunctive relief from this Court upon the instant appeal.

Indeed, over a year's time, petitioners repeatedly chose not to apply to this Court for injunctive relief to preserve the status quo pending further proceedings.¹ Hence, by August 2011 (five months before this appeal was argued), bonds in the amount of $102,200,000 had been issued to finance the project, approximately $30 million of the bond proceeds had been drawn down, and, according to the main respondents' initial brief, “excavation and foundations [were] complete, the erection of the steel superstructure [was] 70% complete, the installation of the concrete slabs on the basement floor [was] complete and the concrete slabs on the ground floor [were] 50% complete.” In light of this history, the dissent would turn the law on its head by penalizing a not-for-profit institution, and the public agencies cooperating with it, for having gone forward with this project in reliance on (1) the issuance of all necessary governmental permits, (2) Supreme Court's denial of all applications for injunctive relief, and (3) petitioners' failure even to seek injunctive relief from this Court. Stated otherwise, it is the position of the dissent that respondents should have imposed an injunction against proceeding with the project on themselves. We disagree.

Petitioners and the dissent fail to come to grips with the fact that petitioners, by failing to seek injunctive relief from this Court upon any of the occasions when they were denied relief by Supreme Court, are themselves complicit in the project's having reached its present advanced stage. Instead, the dissent makes an emotional appeal, essentially accusing us of coming to the aid of those having “the power and the money to proceed with dispatch” (internal quotation marks omitted), as if this matter concerned a for-profit project aimed at enriching private developers at the expense of local homeowners. Putting aside that the status of the proponents of this project has no particular bearing on petitioners' rights, the dissent seems to have lost sight of the fact that the intended beneficiaries of the project are the sick and disabled children served by respondent hospital, a not-for-profit institution. Although the identity of those to be served by the project is also essentially irrelevant to the issues raised on this appeal, we do not think it accurate to characterize these children as persons well-endowed with “power” and “money.” ² We add that the dissent is simply wrong in saying that respondents have acted “with a blatant disregard for [petitioners'] rights.” Respondents have at all times acted under color of law, and their construction of the zoning provision in question, while erroneous, certainly falls within the bounds of reason (especially given that the question is apparently one of first impression), and, after all, was accepted by Supreme Court.

The dissent argues that, to avoid mootness, it sufficed for petitioners to seek injunctive relief in Supreme Court, even if they subsequently failed to apply for such relief upon their appeal to this Court. Dreikausen indicates otherwise. In Dreikausen, the Court of Appeals cited with approval Matter of Fallati v. Town of Colonie, 222 A.D.2d 811, 634 N.Y.S.2d 784 [1995], in which the appeal was found moot because (as summarized by the Court of Appeals) “no injunction [was] sought before [the] Appellate Division” (98 N.Y.2d at 173, 746 N.Y.S.2d 429, 774 N.E.2d 193). The petition in Fallati sought, inter alia, “to enjoin [the respondent] from improving or developing [certain] property pending the determination” of the proceeding challenging the compliance of the intended use with zoning rules (222 A.D.2d at 812–813, 634 N.Y.S.2d 784). The Third Department dismissed the appeal from the dismissal of the petition on the following ground: “Since petitioner did not seek injunctive relief during the pendency of this appeal, we find the controversy herein to be rendered moot” ( id. at 813, 634 N.Y.S.2d 784 [emphasis added] ). Similarly, in Gabriel v. Prime, 30 A.D.3d 955, 818 N.Y.S.2d 322 [2006], the Third Department dismissed as moot an appeal from a judgment declaring that a contract for the sale of real property had been effectively terminated, where the owner (who sought to avoid the contract) sold the property to a third party after entry of the judgment and “no lis pendens was filed nor a stay issued following Supreme Court's judgment in [the owner's] favor” ( id. at 956, 818 N.Y.S.2d 322 [emphasis added]; see also Matter of G.Z.T. Indus. v. Planning Bd. of Town of Fallsburg, 245 A.D.2d 741, 742, 665 N.Y.S.2d 736 [1997] [appeal was dismissed as moot because “ (d)uring the pendency of this appeal, petitioner took no steps to safeguard its interests by, e.g., seeking to temporarily enjoin the planned construction”] [emphasis added]; Matter of Bytner v. City of Albany Bd. of Zoning Appeals, 211 A.D.2d 1000, 1000, 621 N.Y.S.2d 960 [1995] [“this appeal has been rendered moot in view of petitioner's failure to obtain an injunction protecting his interests during the pendency of this appeal”]; cf. Vitiello v. City of Yonkers, 255 A.D.2d 506, 507, 680 N.Y.S.2d 607 [1998] [appeal was not moot where, after Supreme Court denied their application for a TRO against construction and governmental permission to proceed with the project was obtained, “the plaintiffs immediately moved in (the Appellate Division) for a preliminary injunction”] ). In view of the foregoing authority, we are mystified by the dissent's assertion that we have “fabricate [d]” the requirement that a party seeking to halt construction move for injunctive relief at each stage of the proceeding.³

The dissent's position finds no support in Matter of Watch Hill Homeowners Assn. v. Town Bd. of...