Opinion
665 CA 21-01228
11-10-2022
In the Matter of 315 SHIP CANAL PARKWAY, LLC, and Sonwil Distribution Center, Inc., Petitioners-Appellants, v. BUFFALO URBAN DEVELOPMENT CORPORATION and Uniland Development Company, Respondents-Respondents.
ZDARSKY, SAWICKI & AGOSTINELLI LLP, BUFFALO (GERALD T. WALSH OF COUNSEL), FOR PETITIONERS-APPELLANTS. HURWITZ & FINE, P.C., BUFFALO (ANDREA SCHILLACI OF COUNSEL), FOR RESPONDENT-RESPONDENT BUFFALO URBAN DEVELOPMENT CORPORATION. WOODS OVIATT GILMAN LLP, BUFFALO (BRIAN D. GWITT OF COUNSEL), FOR RESPONDENT-RESPONDENT UNILAND DEVELOPMENT COMPANY.
ZDARSKY, SAWICKI & AGOSTINELLI LLP, BUFFALO (GERALD T. WALSH OF COUNSEL), FOR PETITIONERS-APPELLANTS.
HURWITZ & FINE, P.C., BUFFALO (ANDREA SCHILLACI OF COUNSEL), FOR RESPONDENT-RESPONDENT BUFFALO URBAN DEVELOPMENT CORPORATION.
WOODS OVIATT GILMAN LLP, BUFFALO (BRIAN D. GWITT OF COUNSEL), FOR RESPONDENT-RESPONDENT UNILAND DEVELOPMENT COMPANY.
PRESENT: WHALEN, P.J., SMITH, CENTRA, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Memorandum: This matter involves the sale of real property by respondent Buffalo Urban Development Corporation (BUDC) to respondent Uniland Development Company (Uniland). In December 2020, BUDC and Uniland executed a third amendment to their land sale agreement (LSA) approving the expansion of the term "Project" under the LSA to include a ground-mounted photovoltaic solar energy system in lieu of an office or warehouse. Petitioners commenced this CPLR article 78 proceeding seeking to annul BUDC's determination with respect to the LSA use modification and proposed disposition of the property. Petitioners now appeal from a judgment that dismissed their amended petition for lack of standing.
We agree with respondents that the appeal should be dismissed as moot (see generally Matter of Citineighbors Coalition of Historic Carnegie Hill v. New York City Landmarks Preserv. Commn. , 2 N.Y.3d 727, 728-729, 778 N.Y.S.2d 740, 811 N.E.2d 2 [2004] ; Matter of Sierra Club v. New York State Dept. of Envtl. Conservation , 169 A.D.3d 1485, 1486, 94 N.Y.S.3d 741 [4th Dept. 2019] ). "Litigation over construction is rendered moot when the progress of the work constitutes a change in circumstances that would prevent the court from rendering a decision that would effectively determine an actual controversy" ( Sierra Club , 169 A.D.3d at 1486, 94 N.Y.S.3d 741 [internal quotation marks omitted]). When evaluating claims of mootness, courts consider several factors and "[c]hief among [those factors] 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" ( Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach , 98 N.Y.2d 165, 173, 746 N.Y.S.2d 429, 774 N.E.2d 193 [2002] ). "Factors weighing against mootness may include whether a party proceeded in bad faith and without authority," whether "novel issues or public interests such as environmental concerns warrant continuing review," and whether "a challenged modification is readily undone, without undue hardship" ( id. [internal citations omitted]). Here, petitioners never moved for a preliminary injunction, or otherwise sought to preserve the status quo, pending the outcome of the proceeding (see Citineighbors Coalition of Historic Carnegie Hill , 2 N.Y.3d at 729, 778 N.Y.S.2d 740, 811 N.E.2d 2 ; Dreikausen , 98 N.Y.2d at 173, 746 N.Y.S.2d 429, 774 N.E.2d 193 ; Sierra Club , 169 A.D.3d at 1486-1487, 94 N.Y.S.3d 741 ; cf. Town of N. Elba v. Grimditch , 131 A.D.3d 150, 157, 13 N.Y.S.3d 601 [3d Dept. 2015], lv denied 26 N.Y.3d 903, 17 N.Y.S.3d 84, 38 N.E.3d 830 [2015] ), "nonfeasance that they chalk up to ... the unlikelihood of success" ( Citineighbors Coalition of Historic Carnegie Hill , 2 N.Y.3d at 729, 778 N.Y.S.2d 740, 811 N.E.2d 2 ). Moreover, Uniland has established that construction of the solar energy field, which is nearly complete, was not performed in bad faith or without authority (see id. ; Sierra Club , 169 A.D.3d at 1487, 94 N.Y.S.3d 741 ; cf. Town of N. Elba , 131 A.D.3d at 157, 13 N.Y.S.3d 601 ), and that the work cannot readily be undone without substantial hardship (see Sierra Club , 169 A.D.3d at 1487, 94 N.Y.S.3d 741 ). Finally, the exception to the mootness doctrine does not apply here (see Citineighbors Coalition of Historic Carnegie Hill , 2 N.Y.3d at 730, 778 N.Y.S.2d 740, 811 N.E.2d 2 ).