Opinion
September 18, 1990
Appeal from the Supreme Court, New York County (Stanley Parness, J.).
As is pertinent to the instant appeal, the prior history of the 42nd Street Development Project has been set forth in the opinion of the Court of Appeals in Matter of Jackson v. New York State Urban Dev. Corp. ( 67 N.Y.2d 400, 410-413). On August 20, 1987, the UDC adopted a proposed amendment to the Project plan which amendment was the subject of a public hearing on September 30, 1987. Thereafter, on February 9, 1988, the UDC modified the proposed amendment to reflect not only an updated environmental assessment, but voluminous other material, including public commentary. The legal sufficiency of the plan as modified was upheld by this court (see, Matter of Leichter v. New York State Urban Dev. Corp., 154 A.D.2d 258; Matter of Wilder v. New York State Urban Dev. Corp., 154 A.D.2d 261, lv denied 75 N.Y.2d 709; Matter of TOH Realty Corp. v. City of New York, 154 A.D.2d 267).
On November 25, 1987, the UDC authorized public hearings with respect to the leasing of certain sites within the Project area, the proposed leases for which were approved by UDC resolution on February 9, 1988. On June 1, 1988 the New York State Public Authorities Control Board (PACB) approved the UDC's involvement in the Project, and leases to certain sites dated June 21, 1988 were executed. The propriety of the issuance of those leases, which were substantially similar in form and content to those presented at the public hearings, was upheld by this court (see, Matter of Flynn v. New York State Urban Dev. Corp., 154 A.D.2d 263, lv denied 75 N.Y.2d 705; Matter of TOH Realty Corp. v. New York State Urban Dev. Corp., 154 A.D.2d 267, lv denied 75 N.Y.2d 705). In conformity with the land acquisition and development agreement (LADA) and the escrow agreement and side letter the developer lessee Times Square Center Associates (TSCA) placed in escrow an irrevocable $115 million letter of credit in favor of UDC. On March 9, 1989, UDC notified TSCA of its intention to condemn and thereafter, on May 2, 1989, TSCA delivered a further letter of credit guaranteeing a total of $155 million in favor of UDC which was in excess of 120% of the appraised value of the condemnation.
On May 3, 1989 UDC filed the instant petition with respect to the acquisition of tax map blocks 994, 995, 1013 and 1014 in Project sites 1, 3, 4, 10, 12 and a portion of site 6 along with notices of pendency and caused notice to be published. In response to the objections of the condemnees, the court ordered updated appraisals. Thereafter, by order entered April 6, 1990, the court granted the petition on condition that the developer's letter of credit be increased to $241 million.
At the outset we reject the condemnees' argument that Project sites 7 and 8 have been abandoned as a matter of law resulting in such a substantive change in the plan as to render the remaining acquisitions unauthorized. We have approved of the Project plan as modified which encompasses staged acquisitions necessitated by protracted litigation (see, Matter of Wilder v. New York State Urban Dev. Corp., supra). EDPL 401 (C) provides for an outside limitation of 10 years for the commencement of acquisition proceedings so long as proceedings to acquire the first stage are commenced within three years of a final order or judgment on judicial review. The initial plan survived final judicial scrutiny on May 8, 1986 (see, Matter of Jackson v. New York State Urban Dev. Corp., supra), and timely acquisition proceedings with respect to the first stage of the Project were commenced on May 3, 1989. Any delay in the issuance of a final order authorizing the acquisitions was necessitated by the objection of the condemnees to the sufficiency of the developer's letter of credit. Nor did the final documents so vary from their draft proposals as to render them violative of the PACB resolution authorizing UDC to enter into the necessary financial arrangements. Objection thereto should have been commenced by a CPLR article 78 proceeding within four months of the execution of the lease agreements on June 21, 1988 (see, Lenihan v. City of New York, 58 N.Y.2d 679, 682) and in any event the condemnees are barred by laches since the delay herein prejudiced UDC (see, Matter of Barabash, 31 N.Y.2d 76, 81). Further, the constitutional requirement for sure and certain compensation was adequately provided for by the letter of credit.
Concur — Ross, J.P., Rosenberger, Kassal, Wallach and Rubin, JJ.