Preview:

[*1]


Decided on November 22, 2011
Supreme Court, Kings County



Ocean Hill Residents Association, MARINO ABREU, BERNADETTE
MITCHELL, VAL A. HENRY, LEONARD P. HARRISON and
EARTHA STEVENS, Petitioners,

against

The City of New York, ("NYC"); SETH DIAMOND, Commissioner for
the Department of Homeless Services for NYC ("DHS"); GEORGE
NASHAK, Deputy Commissioner for Adult Services for DHS; ROBERT
D. LIMANDRI, Commissioner for the Department of Buildings of NYC
("DOB"); FATMA AMER, P.E., First Deputy Commissioner of DOB;
JAMES P. COLGATE, RA, Assistant Commissioner to Technical
Affairs and Code Development for DOB; VITO MUSTACIUOLO,
Deputy Commissioner for te Department of Housing Preservation and
Development for NYC ("HPD"); 1424 HERKIMER STREET
DEVELOPMENT, LLC; HERKIMER HOLDINGS, LLC; TRIBORO
CAPITAL, LLC; CAMBA, INC; JOHN VENTIS; SHIMMIE HORN;
and XYZ CORP.;*, Respondents.




23921/2011

Ocean Hill Residents Association Tane Waterman & Wurtzel, P.C. 120 Broadway, Suite 948 New York, New York 10271
(212) 766-4000 Stewart Wurzel, Esq. Defendants Attorney Attorney for Herkimer Holdings, LLC / Triboro Capital, LLC. / 1424 Herkimer Street
Development, LLc Cox Padmore Skolnik & Shakarchy, LLP 630 Third Avenue, 19th Floor New York, New York 10017
(866) 716-3813 Solomon Borg, Esq. Camba in House Attorney Kathleen Masters, Esq. 1720 Church Avenue Brooklyn, New York 11220
(718) 282-2500 The City of New York Attorney Office of the Corporation Counsel, General Litigation Division 100 Church Street New York, New York 10007
(212) 788-0928
Wayne P. Saitta, J.
Petitioners OCEAN HILL RESIDENTS ASSOCIATION, MARINO ABREU, BERNADETTE MITCHELL, VAL A. HENRY, LEONARD P. HARRISON and EARTHA STEVENS, (hereinafter "Petitioners"), move this Court by Order to Show Cause for an Order granting a preliminary and permanent injunction; enjoining Respondents from constructing a shelter facility at 1424 Herkimer Street, in the Ocean Hill neighborhood of Brooklyn; compelling the Respondents to make the contract related to the construction of the shelter public; and finding that a determination made by the DEPARTMENT OF BUILDINGS of the CITY of NEW YORK regarding the proposed placement of the shelter was arbitrary and capricious, pursuant to Article 78 of the CPLR.
Upon reading the Order to Show Cause of PETITIONERS, by their attorney Andrew Stern, Esq., dated October 28, 2011, together with the petition pursuant to Article 78 of the CPLR dated September 15, 2011, and all exhibits annexed thereto; the Memorandum of Law of Stewart Wertzel, Esq., attorney for Petitioners, dated September 16, 2011; the Affidavit of Shimmie Horn in Opposition to the Petition and Request for Injunction, dated October 24, 2011, and all exhibits annexed thereto; the CITY Respondents' Verified Answer of October 25th, 2001, by their attorney Haley Stein, Esq., Assistant Corporation Counsel, and all exhibits annexed thereto; the CITY Respondents' Memorandum of Law in Opposition to Petitioners' Motion for a Preliminary Injunction and In Support of CITY Respondents' Verified Answer to the Petition, [*2]dated October 25, 2011; the Verified Answer of Respondent CAMBA, by Kathleen Masters, Esq., attorney for CAMBA, dated October 25, 2011; the Affidavit in Opposition to the Order to Show Cause of Joanne M. Oplustil, Director of CAMBA, dated October 25, 2011; the Fair Share Review submitted by CITY Respondents, dated October 31, 2011; the Memorandum of Law in Reply and Further Support of Petition and Order to Show Cause, of Andrew Stern, Esq., dated November 4, 2011, and all exhibits annexed thereto; the Sur-Reply of Haley Stein, Esq., dated November 7, 2001; and after argument of counsel and due deliberation thereon, that portion of Petitioners' Order to show cause seeking a preliminary injunction is denied and that portion seeking other and further relief is granted to the extent of granting Petitioner's leave to conduct expedited disclosure for the reasons set forth below.
FACTS and PROCEDURAL HISTORYThis Article 78 petition seeks a preliminary and permanent injunction to the construction of a shelter facility at the address of 1424 Herkimer Street in the Brooklyn neighborhood of Ocean Hill, (hereinafter "the site").
The Petitioners are OCEAN HILL RESIDENTS, an unincorporated association of residents in the Ocean Hill Neighborhood, BERNADETTE MITCHELL, VAL A. HENRY, LEONARD P. HARRISON and EARTHA STEVENS, individual residents, and MARION ABREU, the owner of a business located on Herkimer Street, (hereinafter, collectively, "Petitioners").
The Respondents who have appeared in response to the petition are THE CITY OF NEW YORK; SETH DIAMOND, Commissioner of the Department of Homeless Services of the City of New York, ("DHS"), George Nashak, DHS' Deputy Commissioner for Adult Services; ROBERT D. LiMANDRI, Commissioner of the City's Department of Buildings, ("DOB"), FATMA AMER, PE, former First Deputy Commissioner of DOB; JAMES P. COLGATE, RA, DOB's Assistant Commissioner for Technical Affairs and Code Development; and VITO MUSTACIUOLO, Deputy Commissioner for the City's Department of Housing Preservation and Development ("HPD"), (hereinafter, collectively "CITY" or "CITY Respondents"); CAMBA, INC., ("CAMBA"), and 1424 HERKIMER STREET DEVELOPMENT LLC; HERKIMER HOLDINGS, LLC; TRIBORO CAPITAL LLC; JOHN VENTIS and SHIMMIE HORN.
Respondent CAMBA is a non-profit organization with its principal place of business in Brooklyn, New York. CAMBA is a community based organization which provides a variety of services to the Brooklyn community, including employment, education, health related, housing, legal, social, business development and youth services.
Respondent 1424 HERKIMER STREET DEVELOPMENT, LLC is a domestic limited liability company, registered to do business in the state of New York, and is the owner of the property at which the shelter will operate.
Respondent HERKIMER HOLDINGS, LLC is a fictitious entity which appears on permits to the DOB for the property located at 1424 Herkimer Street.
Respondent TRIBORO CAPITAL, LLC is a domestic limited liability company, registered to do business in the state of New York.
[*3]Respondent JOHN VENTIS is an individual doing business in the State of New York through 1424 HERKIMER STREET DEVELOPMENT, LLC; HERKIMER HOLDINGS, LLC and TRIBORO CAPITAL, LLC.
Respondent SHIMMIE HORN is an individual doing business in the State of New York through 1424 HERKIMER STREET DEVELOPMENT, LLC; HERKIMER HOLDINGS, LLC and TRIBORO CAPITAL, LLC.
Respondent XYZ CORP. is a name of the unknown entity facilitating the creation of the proposed shelter to be located at 1424 Herkimer Street.
The CITY Respondents have entered into a contract with CAMBA for CAMBA to provide services to a shelter which will be located at 1424 Herkimer Street in the Ocean Hill section of Brooklyn, located in Community District 16.
The CITY states that it entered into contract negotiations with CAMBA to operate the shelter, and on December 20, 2010, CAMBA notified Community Board 16 of its intention to obtain the contract to operate a 200 bed shelter, to be located at 1424 Herkimer Street, in Ocean Hill, Brooklyn.
On March 15, 2011, George Berger & Associates, a company which provides engineering services and acting as the filing representative for HERKIMER STREET DEVELOPMENT, LLC, submitted a job application to DOB to renovate and convert the building, a vacant warehouse, to a transient hotel. The application was approved on March 28, 2011.
The shelter facility would occupy four floors and the basement of a rehabilitated 40,000 square foot building. There will be a single entrance to the building which will have 19 dorm room s holding 10 to 13 beds each. The building will also contain dining, laundry and recreation space, as well as offices occupied by social services providers.
The building is located on a 9,604 square foot parcel in the Ocean Hill/Broadway Junction neighborhood of Brooklyn, at 1424 Herkimer Street, at the southwest corner of Herkimer and Sackman Streets. It is zoned for M1-2 manufacturing, and has been renovated for use as a shelter.
On May 26, 2011, DHS Commissioner Seth Diamond met with Council Member Erik Dilan to discuss the proposed shelter. Also on May 26, 2011, CAMBA's Executive Director, Joanne M.
Oplustil attended a community board meeting to present on the proposed shelter site and discuss community concerns. State Assembly Member William Boyland, Jr., as well as a representative from Congresswoman Yvette Clark's office, were also present.
On June 5, 2011, DHS Commissioner Seth Diamond and a representative of the Mayor's Office met with the residents of the 1400 Herkimer Block Association to tour the community. DHS states it held a Public Hearing on July 28, 2011.
Council Member Dilan submitted a written statement to be presented at the public hearing, opposing the placement of the shelter. The statement cited an over saturation in the district, and citing the fact that the shelter would abut a residential neighborhood. Community members testified in opposition to the shelter, basing their opposition in part on the facts that there are many other shelters in the community. [*4]The residents testified that the shelters and other social service facilities have resulted in loitering and an increase in crime, a decrease in property value, and they testified as to concerns that this shelter would be proximate to a children's park and school, posing a threat to the community's children.
Joanne Oplustil of CAMBA responded by acknowledging the community's concerns. She stated that CAMBA would create a community advisory board with which CAMBA would meet regularly, and that it would take steps to ensure the community's concerns about security as a result of the facility were not realized.
DHS states that after carefully considering the concerns of the community, in part by comparing them to the concerns of other communities in which the City has proposed to place shelters, it concluded that "the institution of effective security measures" and other quality assurance controls would "avert any potential negative impacts".
A Fair Share review was conducted by DHS and the report issued October 31, 2011.
The application to move forward with the development of the site was submitted to the Comptroller's Office for approval on November 1, 2011. The contract was registered on November 10, 2011.
The Petitioners filed this Article 78 proceeding seeking to enjoin the Respondents from operating the shelter. Petitioners move for a preliminary injunction to bar Respondents from opening the shelter.


POSITIONS
Petitioners seek a preliminary injunction against the Respondents, enjoining them from opening the proposed shelter located at 1424 Herkimer Street alleging the Respondents failed to adhere to the processes required by the City Charter to ensure assessment of potential negative impacts to the community and the environment.
At issue is whether the review of the project was properly conducted so as to consider the concerns and rights of the community; specifically, whether there was a need for the project to be considered under the Uniform Land Use Review Procedure (ULURP), whether the project is in compliance with the zoning regulations which apply to the site, whether the CITY conducted an Environmental Review pursuant to SEQRA/CEQR, and whether the NYC Fair Share Criteria were properly considered and whether the decision to site the shelter was rationally based on the Criteria.
CAMBA joins in Respondent CITY's positions.
Respondent SHIMMIE HORN and 1424 HERKIMER STREET DEVELOPMENT LLC oppose the petition and the motion for preliminary injunction.

DISCUSSION
To obtain the drastic remedy of a preliminary injunction, a movant must demonstrate (1) a likelihood or probability of success on the merits, (2) irreparable harm if the injunction is denied, and (3) a balance of the equities in favor of granting the injunction. Peterson v Corbin, 275 AD2d 35, 713 N.Y.S.2d 361 (2nd Dept 2000); Aetna Ins. Co. v Capasso, 75 NY2d 860, 552 N.Y.S.2d 918 (1990); W.T. Grant Co. v [*5]Srogi, 52 NY2d 496, 438 N.Y.S.2d 761(1981).
At this point, Petitioners have failed to demonstrate a likelihood of success on the merits.
Uniform Land Use Review Procedure (ULURP)
Petitioners argue the CITY was required to submit the proposed shelter through the ULURP process and failed to do so. They argue that a ULURP review is required because the use of the property at Herkimer Street constitutes a site selection for a capital project, and because the CITY's arrangement for running the shelter constitutes a de facto lease with the owner of the property.
Respondents argue that no ULURP review is required as the contract between DHS and CAMBA for the operation of the shelter will not include a lease which is subject to ULURP. They state that because the CAMBA will lease the property directly from the owner and not from the City, it is not subject to ULURP review. Respondents cite Ferrer v. Dinkins, 218 AD2d 89, 635 NYS2d 965 (1st Dept 1996) in support of this proposition. They further state that because the funding for the shelter will come from DHS' expense budget and will not be a capital asset of the City, no ULURP is required.
ULURP was established as part of the City Charter to require a standardized procedure whereby applications affecting the land use of the city would be publicly reviewed, and established mandated time frames within which application review must take place. Participants in the ULURP process include the Department of City Planning (DCP) and the City Planning Commission (CPC), Community Boards, the Borough Presidents, the Borough Boards, the City Council and the Mayor.
Section 197-c of the City Charter enumerates twelve categories of land use actions that are subject to ULURP. The opening and operating of homeless shelters are not necessarily subject to ULURP. It is only when the CITY takes an action within one of the categories enumerated in section 197-c in connection with a shelter that it must be reviewed pursuant to ULURP. Ferrer v Dinkins, 218 AD2d 89, 635 N.Y.S.2d 965 (1st Dept 1996); Lucia Plaza v. The City of New York, Index No.36317/2000 (Kings Sup 2001); Community Planning Bd. No. 4 (Manhattan) v Homes for the Homeless, 158 Misc 2d 184, 600 N.Y.S.2d 619 (N.Y.Sup.1993).
The relevant categories in this case are subsection (5) which covers site selection for capital projects, and subsection (11), which covers acquisition by the city of real property , including by lease.
The Courts have held that the Uniform Land Use Review Procedure would apply if the City were the lessee of the site or if it is determined that the shelter is a capital project. City Charter

Download 2011_52179.pdf

New York Law