Opinion
7442.
January 3, 2006.
Order and judgment (one paper), Supreme Court, New York County (Michael D. Stallman, J.), entered September 6, 2005, which, in a proceeding pursuant to CPLR article 78 brought by a community advocacy group seeking to prohibit respondent Tierney, Chair of the City of New York Landmarks Preservation Commission, from participating in proceedings related to the possible landmark designation of a building located at 2 Columbus Circle in Manhattan, which building respondent Museum of Arts and Design intends to purchase, inter alia, granted respondents' motions to dismiss the petition for failure to state a cause of action, unanimously affirmed, without costs.
Whitney North Seymour, Jr., New York (Gabriel North Seymour of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Susan Choi-Hausman of counsel), for Robert B. Tierney, respondent.
Stroock Stroock Lavan LLP, New York (Charles G. Moerdler of counsel), for Laurie Beckelman, Jerome A. Chazen, Holly Hotchner and The Museum of Arts and Design, respondents.
Before: Saxe, J.P., Marlow, Williams, Catterson and Malone, JJ., concur.
Petitioner's claims challenging the legality of the Commission's procedures are improperly raised for the first time on appeal ( see Sean M. v. City of New York, 20 AD3d 146, 149-150 ), and also collaterally estopped by the findings made in Matter of Landmark West! v. Burden (3 Misc 3d 1102[A], 2004 NY Slip Op 50331[U] [2004], affd 15 AD3d 308, 309, lv denied 5 NY3d 713) that, inter alia, the Commission was not obligated to hold a public hearing before deciding not to calendar a request for the property's designation as a landmark. Insofar as petitioner's application is based on NY City Charter § 1046 (c), which prohibits ex parte communications between parties and a hearing officer in an "adjudication," i.e., "a proceeding in which the legal rights, duties or privileges of named parties are required by law to be determined by an agency on a record and after an opportunity for a hearing" (NY City Charter § 1041), the application was properly denied on the ground that landmark designations are administrative, not adjudicative, in nature ( see Matter of Teachers Ins. Annuity Assn. of Am. v. City of New York, 82 NY2d 35, 41; Matter of Doro's Rest. v. City of New York, 179 AD2d 406, 407), and therefore not subject to section 1046. Petitioner's conspiracy and 42 USC § 1983 claims lack allegations sufficient to show a scheme to undermine its First Amendment right to petition the Commission. We have considered and rejected petitioner's other arguments. [ See 9 Misc 3d 1102(A), 2005 NY Slip Op 51374(U) (2005).]