Opinion
14146N, 101695/13.
02-03-2015
In re PROSPECT PARK EAST NETWORK, et al., Petitioners–Appellants, v. NEW YORK STATE HOMES & COMMUNITY RENEWAL, et al., Respondents–Respondents, Lettire Construction Services, Inc., Respondent.
Wilmer Cutler Pickering Hale and Dorr LLP, New York (David B. Bassett of counsel), for appellants. South Brooklyn Legal Services, Brooklyn (Rachel Hannaford of counsel), for Flatbush Development Corporation, Flatbush Tenant Coalition and Leo Crooks, appellants. Venable LLP, New York (Michael J. Volpe of counsel), for New York State Homes & Community Renewal, Darryl C. Towns and New York State Housing Finance Agency, respondents. Sive, Paget & Riesel, P.C., New York (David Paget of counsel), for The Hudson Companies Inc., Hudson CBD Flatbush LLC, Hudson PLG LLC, Hudson Company Ventures LLC and Hudson Catamount Flatbush LLC, respondents.
Wilmer Cutler Pickering Hale and Dorr LLP, New York (David B. Bassett of counsel), for appellants.
South Brooklyn Legal Services, Brooklyn (Rachel Hannaford of counsel), for Flatbush Development Corporation, Flatbush Tenant Coalition and Leo Crooks, appellants.
Venable LLP, New York (Michael J. Volpe of counsel), for New York State Homes & Community Renewal, Darryl C. Towns and New York State Housing Finance Agency, respondents.
Sive, Paget & Riesel, P.C., New York (David Paget of counsel), for The Hudson Companies Inc., Hudson CBD Flatbush LLC, Hudson PLG LLC, Hudson Company Ventures LLC and Hudson Catamount Flatbush LLC, respondents.
FRIEDMAN, J.P., ANDRIAS, SAXE, RICHTER, GISCHE, JJ.
Opinion Order, Supreme Court, New York County (Peter H. Moulton, J.), entered June 23, 2014, which vacated a temporary restraining order and denied petitioners' motion for a preliminary injunction staying any work on the subject project, and any further public financing for the project, until a further environmental review is conducted, unanimously affirmed, without costs.
In this proceeding brought pursuant to CPLR article 78 seeking to, among other things, annul a negative declaration of environmental impact issued by respondent New York State Housing Finance Agency (HFA), Supreme Court providently exercised its discretion in denying petitioners' motion for a preliminary injunction (see Gilliland v. Acquafredda Enters., LLC, 92 A.D.3d 19, 24–25, 936 N.Y.S.2d 125 [1st Dept.2011] ). Petitioners did not demonstrate a likelihood of success on the merits (id. ), since HFA identified the relevant areas of environmental concern, took a “hard look” at them, and made a “reasoned elaboration” of the basis for its determination (see Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d 219, 231–232, 851 N.Y.S.2d 76, 881 N.E.2d 172 [2007] [internal quotation marks omitted] ). The environmental assessment form (EAF) specifically analyzed the issues of secondary displacement and of the project's impact on the view from Prospect Park, and found no significant adverse environmental impacts. Even if the project should have been designated as a Type I action, any misclassification was harmless error, because the procedures applicable to Type I actions were used—namely, the Full EAF (see Matter of Rusciano & Son Corp. v. Kiernan, 300 A.D.2d 590, 590–591, 752 N.Y.S.2d 377 [2d Dept.2002], lv. denied 99 N.Y.2d 510, 760 N.Y.S.2d 101, 790 N.E.2d 275 [2003] ; Matter of Jaffee v. RCI Corp., 119 A.D.2d 854, 855, 500 N.Y.S.2d 427 [3d Dept.1986], lv. denied 68 N.Y.2d 607, 506 N.Y.S.2d 1032, 498 N.E.2d 434 [1986] ). HFA properly submitted a supplemental affidavit to explain the analysis set forth in the EAF in response to the challenges raised by petitioners in this proceeding (see Matter of Chinese Staff & Workers' Assn. v. Burden, 88 A.D.3d 425, 433, 932 N.Y.S.2d 1 [1st Dept.2011], affd. 19 N.Y.3d 922, 950 N.Y.S.2d 503, 973 N.E.2d 1277 [2012] ).
Supreme Court properly determined that the impact of HFA's financing of the project is slight, since the project can be built “as of right” without HFA's financing (see Matter of Committee to Preserve Brighton Beach & Manhattan Beach v. Council of City of N.Y., 214 A.D.2d 335, 337, 625 N.Y.S.2d 134 [1st Dept.1995], lv. denied 87 N.Y.2d 802, 638 N.Y.S.2d 425, 661 N.E.2d 999 [1995] ).
We have considered petitioners' remaining contentions and find them unavailing.