| Matter of 265 Penn Realty Corp. v City of New York |
| 2012 NY Slip Op 07120 [99 AD3d 1014] |
| October 24, 2012 |
| Appellate Division, Second Department |
| In the Matter of 265 Penn Realty Corp., Petitioner, v Cityof New York et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Rochelle Cohen, AmyMcCamphill, and Leslie Wright of counsel), for respondents.
Proceeding pursuant to EDPL 207 to review a determination of the respondent City of NewYork dated September 27, 2011, made after a public hearing, authorizing the condemnation ofcertain real property for the continued use as a New York City Fire Department EmergencyMedical Service station.
Adjudged that the determination is confirmed, with costs, the petition is denied, and theproceeding is dismissed on the merits.
The principal purpose of EDPL article 2 is to insure that an agency does not acquire propertywithout having made a reasoned determination that the condemnation will serve a valid publicpurpose (see EDPL 201; Matter of Jackson v New York State Urban Dev. Corp.,67 NY2d 400, 417-418 [1986]; Matterof Aspen Cr. Estates, Ltd. v Town of Brookhaven, 47 AD3d 267, 271 [2007],affd 12 NY3d 735 [2009], cert denied 558 US —, 130 S Ct 96 [2009]; Matter of Woodfield Equities LLC vIncorporated Vil. of Patchogue, 28 AD3d 488, 489 [2006]). A party aggrieved by thecondemnor's determination may seek judicial review; however, the scope of that review islimited to "(1) whether the proceeding was in conformity with the federal and state constitutions,(2) whether the proposed acquisition is within the condemnor's statutory jurisdiction or authority,(3) whether the condemnor's determination and findings were made in accordance with theprocedures set forth in EDPL article 2 and [the State Environmental Quality Review Act], and(4) whether the proposed acquisition will serve a public use, benefit, or purpose" (Matter ofWoodfield Equities LLC v Incorporated Vil. of Patchogue, 28 AD3d at 490; seeEDPL 207 [C]). The condemnor has "broad discretion to decide what land is necessary to fulfillits purpose, and its rational determination in that regard will not be disturbed" (Matter of Stankevich v Town ofSouthold, 29 AD3d 810, 811 [2006]; see Matter of Gyrodyne Co. of Am., Inc. v State Univ. of N.Y. at StonyBrook, 17 AD3d 675, 676 [2005]).
Here, as the petitioner acknowledges, the continued use of the subject real property as a NewYork City Fire Department Emergency Medical Service station serves a legitimate publicpurpose. While the petitioner contends that taking the property in fee is excessive, it failed tosustain its burden in this regard. Under the circumstance of this case, the determination thatacquisition in fee was necessary to achieve the desired public purpose was rational, and there isno basis upon which to disturb it (seeMatter of Arbern Sutphin Props., LLC v City of New York, 85 AD3d 1158, 1160[2011]; Matter of Aspen Cr. Estates, Ltd. v Town of Brookhaven, 47 AD3d at 278;[*2]Matter of Gyrodyne Co. of Am., Inc. v State Univ. ofN.Y. at Stony Brook, 17 AD3d at 676; Matter of Wechsler v New York State Dept. ofEnvtl. Conservation, 153 AD2d 300, 303 [1990], affd 76 NY2d 923 [1990]).Moreover, the petitioner's unsubstantiated allegations fall far short of the "clear showing"necessary to establish that the condemnor acted in bad faith (see Matter of Stankevich vTown of Southold, 29 AD3d at 811; Matter of Woodfield Equities LLC v IncorporatedVil. of Patchogue, 28 AD3d at 490; Matter of Three P. Corp. v Town of E. Hampton,287 AD2d 511 [2001]; cf. Matter of Zutt v State of New York, 99 AD3d 85 [2012]).
The petitioner's contention that the condemnor failed to fulfill its obligations under the StateEnvironmental Quality Review Act (hereinafter SEQRA) is also without merit. SEQRA requiresthat agencies "minimize or avoid adverse environmental effects" when considering proposedactions (ECL 8-0109 [1]; see 6 NYCRR part 617). In a full environmental assessmentprepared in connection with the condemnation, no adverse environmental impacts wereidentified. Moreover, it is undisputed that the premises has been used in the same manner as iscurrently proposed since 1987, and the petitioner has failed to assert any significant potential forenvironmental harm that might result from the condemnation. Accordingly, the issuance of anegative declaration under SEQRA was appropriate and the preparation of an environmentalimpact statement was unnecessary (see 6 NYCRR 617.7 [a] [2]; Matter of Aspen Cr.Estates, Ltd. v Town of Brookhaven, 47 AD3d at 274, affd 12 NY3d 735 [2009];Matter of Woodfield Equities LLC v Incorporated Vil. of Patchogue, 28 AD3d at 490; Matter of McCarthy v Town ofSmithtown, 19 AD3d 695, 696 [2005]).
The petitioner's remaining contentions are without merit. Rivera, J.P., Angiolillo, Chambersand Roman, JJ., concur.