| Branch v Riverside Park Community LLC |
| 2010 NY Slip Op 05472 [74 AD3d 634] |
| June 22, 2010 |
| Appellate Division, First Department |
| Mildred Branch et al., Appellants, v Riverside ParkCommunity LLC et al., Respondents. |
—[*1] Baker & Hostetler LLP, New York (John Siegal of counsel), for Riverside Park CommunityLLC, Riverside Park Community II LLC and Urban American Management LLC, respondents. Anderson Kill & Olick, P.C., New York (John M. O'Connor of counsel), for New York CityEducational Construction Fund, respondent.
Order, Supreme Court, New York County (James A. Yates, J.), entered July 15, 2009, whichgranted defendants-respondents' motions to dismiss the combined complaint and petition seekingdamages for breach of lease and for declaratory and injunctive relief, unanimously affirmed,without costs.
Plaintiffs failed to establish they qualified as third-party beneficiaries of the ground lease byshowing the lease was intended for their benefit (see State of Cal. Pub. Employees'Retirement Sys. v Shearman & Sterling, 95 NY2d 427, 434-435 [2000]). Accordingly, theylacked standing to challenge the amendment to the ground lease deleting the requirement that thebuilding was to be used only for residential purposes for persons and families of low or moderateincome (see Mendel v Henry PhippsPlaza W., Inc., 6 NY3d 783 [2006]). Even if standing were found, plaintiffs' challengeis unavailing because they could not point to language mandating that publicly assisted housingbe provided for the entire 75-year term of the ground lease (see Concerned Cooper Gramercy Tenants' Assn. v New York City Educ.Constr. Fund, 13 AD3d 61 [2004]).
The alleged harassment, reduced maintenance and evictions were not caused by theamendment to the ground lease. Those allegations present individual issues of fact to beaddressed in Housing Court.
The CPLR article 78 challenge to the decision of the Educational Construction Fund (ECF)to amend the ground lease without undertaking an environmental review, in violation of the NewYork State Environmental Quality Review Act (SEQRA), was time-barred. The notice thatcommenced the running of the statute of limitations was provided at the June 16, 2006 publichearing, where ECF adopted a resolution that the developer was no longer required to operate itshousing under the affordable housing guidelines for the remainder of the lease term, indicatingthat ECF's decision-making process was complete and that ECF had [*2]committed itself to a definite course of future decisions (seeMatter of Young v Board of Trustees of Vil. of Blasdell, 89 NY2d 846, 848 [1996]; Matter of Sanitation Garage BrooklynDists. 3 & 3A, 32 AD3d 1031 [2006], lv denied 7 NY3d 921 [2006]; Matterof Concerned Port Residents Comm. v Incorporated Vil. of Sands Point, 291 AD2d 494[2002]). In any event, ECF's decision to deem the lease amendment a "Type II" action, notrequiring any environmental review under SEQRA, was not arbitrary or capricious or inderogation of SEQRA regulations. Concur—Gonzalez, P.J., Andrias, Catterson, Renwickand Manzanet-Daniels, JJ. [Prior Case History: 24 Misc 3d 1226(A), 2009 NY Slip Op51626(U).]