Opinion
10-04-2016
In re Carl E. PERSON, Petitioner–Appellant, v. NEW YORK CITY DEPARTMENT OF TRANSPORTATION, Respondent–Respondent.
Carl E. Person, New York, appellant pro se. Zachary W. Carter, Corporation Counsel, New York (Megan E.K. Montcalm of counsel), for respondent.
Carl E. Person, New York, appellant pro se. Zachary W. Carter, Corporation Counsel, New York (Megan E.K. Montcalm of counsel), for respondent.
FRIEDMAN, J.P., SAXE, MOSKOWITZ, GISCHE, KAHN, JJ.
Judgment, Supreme Court, New York County (Alexander W. Hunter, Jr., J.), entered October 29, 2015, denying the petition for, inter alia, a declaration that respondent's alleged congestion-related activities violated the State Environmental Quality Review Act (SEQRA), and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs. Judgment, same court and Justice, entered April 28, 2016, to the extent appealed from, denying petitioner's motion for leave to amend, unanimously affirmed, without costs.
The article 78 court correctly determined that petitioner lacks standing to sue under SEQRA. Petitioner's allegation that respondent's congestion-related initiatives have caused him to spend additional time stuck in vehicular traffic does not establish the requisite environmental injury (see Matter of Association for a Better Long Is., Inc. v. New York State Dept. of Envtl. Conservation, 23 N.Y.3d 1, 8–9, 988 N.Y.S.2d 115, 11 N.E.3d 188 [2014] ; Matter of Widewaters Rte. 11 Potsdam Co., LLC v. Town of Potsdam, 51 A.D.3d 1292, 858 N.Y.S.2d 820 [3d Dept.2008] ). Nor do the alleged other consequences of increased time stuck in traffic, such as lost recreational time, constitute environmental injuries (see e.g. Matter of Turner v. County of Erie, 136 A.D.3d 1297, 24 N.Y.S.3d 812 [4th Dept.2016], lv. denied 27 N.Y.3d 906, 2016 WL 2637037 [2016] ). The allegations that the alleged increased congestion will result in greater risk of adverse health consequences (through additional air pollution), delayed ambulance times, and delayed access to toilet facilities (while sitting in traffic) are purely speculative and therefore insufficient to establish injury for the purposes of standing (see New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 778 N.Y.S.2d 123, 810 N.E.2d 405 [2004] ; Matter of Rent Stabilization Assn. of N.Y.C., Inc. v. Miller, 15 A.D.3d 194, 789 N.Y.S.2d 126 [1st Dept.2005], lv. denied 4 N.Y.3d 709, 797 N.Y.S.2d 421, 830 N.E.2d 320 [2005] ).
Nor has petitioner adequately alleged that his injury is different from that suffered by the public at large (see Matter of Shelter Is. Assn. v. Zoning Bd. of Appeals of Town of Shelter Is., 57 A.D.3d 907, 909, 869 N.Y.S.2d 615 [2d Dept.2008], lv. denied in part, dismissed in part 12 N.Y.3d 797, 879 N.Y.S.2d 43, 906 N.E.2d 1077 [2009] ). His main complaint is simply more time spent in traffic, which, if true, would affect countless other New Yorkers.
We note that the petition is also untimely. Even crediting petitioner's allegations that respondent's congestion-related initiatives were part of a secret plan to increase congestion in Manhattan so as to make congestion pricing politically palatable, the initiatives themselves were made public in 2008, and, as petitioner acknowledges, many of them underwent environmental review between May 2012 and July 2014. Petitioner had “timely knowledge [of respondent's activities] sufficient to have placed [him] under a duty to make inquiry and ascertain all the relevant facts prior to the expiration of the applicable statute of limitations” (see Rite Aid Corp. v. Grass, 48 A.D.3d 363, 364–365, 854 N.Y.S.2d 1 [1st Dept.2008] ). However, he did not commence this proceeding until 2015, long after the four-month statute of limitations had expired (see CPLR 217[1] ).
The court properly rejected petitioner's proposed amendments (see Davis & Davis v. Morson, 286 A.D.2d 584, 585, 730 N.Y.S.2d 293 [1st Dept.2001] ). We have considered petitioner's remaining contentions and find them unavailing.